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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at|http : //books . google . com/| i — ^ ^ h { A TREATISE THE LAW OF ESTOPPEL, f TREATISE ON THE LAW OF ESTOPPEL AND ITS APPLICATION IN PRACTICE BY MELVILLE M. BIj^LOW Ph. D. Harvard FIFTH EDITION LITTLE, BRdWN, AND COMPANY 1890 UBMRY OP WB UlAH/D STANFORD JH. UmERSlTY. Entered according to Act of CongresB, in the year 1876, Bt Melvillb M. Bigelow, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1882, Bt Melville M. Bigelow, lu the Office of the Librarian of Congress, at Washington. Copyright, 1886, Bt Melville M. Bigelow. Copyngfa, 1890, Bt Melville M. Bigelow. Universitt Press: John Wilson and Son, Cambridge. PREFACE TO THE FIFTH EDITION. In the present edition the cases are brought down to the time of writing ;. a chapter on * Negligence with- out Representation ' (Chapter XIX.) has been written ; and considerable additions have been made throughout the book, as in regard to fraud touching judgments, estoppel by misrepresentation, and estoppel by waiver. Some changes in arrangement, by way of better method, have, also been made ; these, I hope, are final and sufficient. I have to thank my friend Sir William Anson for giving me free access, early and late, to the library of All Souls College. Much of the work of preparing the edition has been done in the quiet of this retreat of Blackstone and many another worthy. M. M. B. All Souls Library, Oxford. PREFACE TO THE FOURTH EDITION. Beyond the usual working up of the current cases, with the re-examination and rewriting made necessary thereby, the chief features of the present edition con- sist (1) in a more clear and exact marking of the limits of the subject in various places, and (2) a filling out to the limits wherever there was found vacant territory. Sometimes vacant places were found where the boun- daries of the subject were already sufficiently marked out, as in the chapters on Res Judicata and Judgments ; sometimes it was found necessary, as in some of the chapters relating to estoppel in pais, both to fix the metes and bounds and to fill out the ground. A par- ticular example of the latter work may be seen in the new section 7, on Waiver, of the chapter on Estoppel by Conduct, pp. 633-641 ; ^ one of the former, in the consideration of judgments in rem, in Chapters II., IV., V. In this way much has been done at once to com- plete the subject and to distinguish things which, while bearing a resemblance to estoppel, are in reality some- thing else. * Quod simile non est idem.' Boston, Sept 1, 1886. 1 Chapter 20, 5th edition. PREFACE TO THE FIRST EDITION.* That the law of estoppel should have been looked upon as an unprofitable subject and left until recent times to haphazard growth is nothing strange. There is something forbidding in the very subject; it has been thought to be hard, dry, and technical, and the courts used to call estoppels odious. But this notion is now out of date ; and to no one is so much due for dispelling it as to Mr. John William Smith. The spirit with which he approached the subject in his note to the Duchess of Kingston's Case is as admirable as the language is familiar : * Notwithstanding the unpromis- ing definition of the word " estoppel " [by Lord Coke], it is in no wise unjust or unreasonable, but on the con- trary in the highest degree reasonable and just, that some solemn mode of declaration should be provided by law for the purpose of enabling men to bind them- selves to the good faith and truth of representations on which other persons are to act. Interest reipublicae ut sit finis litium ; but if matters once solemnly de- cided were to be again drawn into controversy, if facts once solemnly affirmed were to be again denied when- ever the affirmant saw his opportunity, the end would never be of litigation and confusion.' 1 Abridged and in part rewritten. X PREFACE. Mr. Smith's note, however, with all the additions of later editors, presents only an outline of the law of estoppel ; and the subject has expanded to such pro- portions in recent times that something more has been called for. The present work is an attempt to meet the later demand for a more exhaustive treatment of this venerable branch of the law. The plan adopted by the author for carrying out the undertaking has been somewhat different from that pursued in most other law books', though resembling that of some of the best English books, such as Jarman on Wills. The work consists in its main feature in presenting the law by way of a review of the cases upon a statement of their facts, as in Jarman ; to this being often added, by way of support of the text, what historians some- times call * pieces justificatives,' — that is to say, the very language of the authorities upon which the text is founded. The reader is thus enabled to judge the better of the correctness of the author s statement of the law. The ' Institutes ' has been written with special ref- erence to the use of students, as an introduction to the work. Not to invoke the greater Roman example, the idea was suggested by the Introduction of Mr. Adams to his Treatise on Equity, one of the most useful fea- tures, in the present writer's opinion, of that valuable work. It may be hoped that the practitioner also will find the Institutes of service in making him acquainted with the order of arrangement of the several parts of the subject. Boston, July 20, 1872. CONTENTS. PAOB Cases cited xvii Introduction. 1. Nature of Estoppel 3 2. Institutes 8 PART I. EIGHTS ARISING FROM ESTOPPEL BY RECORD. CHAPTER I. Preliminart View : The Record 35 CHAPTER II. Preliminart View: Res Judicata 39 § 1. Meaning and Use of the Term 39 § 2. Requisites of the Estoppel 51 §3. Special Tribunals 61 § 4. Sp^ial Judgments (on the Merits) of the ordinary Tribunals 72 CHAPTER III. Judgments in Personam 80 § 1. Former Judgment: Identity of Causes of Action .... 80 § 2. Former Verdict: Identity of Point in Issue 90 § 3. The Special Effect and Operation of Judgment and Verdict Estoppels 103 § 4. Collateral Impeachment of Judgments 202 CHAPTER IV. Judgments in Rem 221 Xll CONTENTS. CHAPTER V. PAGE FoRBiON Judgments in Rem 236 CHAPTER VL Foreign Judgments in Personam 256 § 1. Historical View of the Subject 256 § 2. Constitutional Provision : Judgments of Sister States . . 266 § 3. Application of Rule of Res Judicata 274 § 4. Jurisdiction 288 § 5. Fraud 302 § 6. Merger 308 § 7. Judgment for Defendant 313 § 8. Garnbhment or Trustee Process 314 § 9. Privity 317 § 10. Judgments of foreign Courts of inferior Jurisdiction . . 319 PART II. EIGHTS ARISING FROM ESTOPPEL BY DEED. CHAPTER VII. PREblMINART VlBW: ThE SeA.L 329 CHAPTER Vin. PfiELiMmART View: Parties and Privies 334 § 1. Parties .834 §2. Privies 341 CHAPTER IX. Preliminary View: Limitations of the Doctrine .... 349 § 1. The Deed must be Valid 349 § 2. Estoppel limited to QuestionR directly concerning the Deed . 352 §3. Grantee in Deed-poll : In Indenture: Mutuality .... 356 § 4. Estoppel against Estoppel '^60 § 5. No Estoppel if Truth appears 361 • • • CONTENTS. XIU CHAPTER X. PAOB Recitals 865 § 1. Particular Recitals • • • . 366 2. General Recitals • • • 877 CHAPTER XL TiTLB BY Estoppel 884 §1. History of the Subject 884 §2. Leases: Where no Interest passes 390 § 3. Leases: Where an Interest passes 391 § 4. Grantor and Grantee 394 § 5. Grantee before and Grantee after Title acquired .... 413 6. Personal Property 446 CHAPTER XIL Release of Dower 448 PART m. RIGHTS ARISING FROM ESTOPPEL IN PAIS. CHAPTER Xm. PfiELIMINARY ViEW 463 A. ESTOPPEL BY CONTRACT. CHAPTER XIV. Facts agreed or assumed 459 § 1. The general Principle 459 2. Corporations 461 CHAPTER XV. Acknowledgment of Receipt 471 ) XIV CONTENTS. CHAPTER XVI. PAGE Commercial Paper 480 § 1. Genuineness 480 §2. Capacity 495 § 3. Certification of Checks 499 § 4. Transfer by Indorser after Liability fixed 504 CHAPTER XVII. Legal Effect of Contract: Taking Possession 506 § 1. Estoppel of Tenant to deny Landlord's Title 506 . § 2. Estoppel under Contract of Purchase 545 § 8. Estoppel of Bailor: Receiptor of Goods 548 § 4. Employees : Assignees and Licensees : Patents 552 §5. Possession taken under Will or Intestacy 554 B. ESTOPPEL BY CONDUCT. CHAPTER XVm. Estoppel by Misrepresentation, or Equitable Estoppel . 556 § 1. Nature of Estoppel by Misrepresentation 556 § 2. The Representation 570 § 3. Knowledge of Facts by Party to be estopped 609 § 4. Ignorance of Facts by Party claiming Estoppel 626 ■ § 5. The Intention 628 § 6. The Representation must be acted upon 688 j CHAPTER XIX. Negligencb without Representation 653 CHAPTER XX. Waiver 660 C. QUASI-^ESTOPPEL. CHAPTER XXL Election and Inconsistent Positions 673 §1. Election 673 § 2. Inconsistent Positions generally 683 CONTENTS. XV r PART IV. PROCEDUEH CHAPTER XXII. PACK Pleadiko thb Estoppel 697 CHAPTER XXm. Estoppel by Recokd 701 CHAPTER XXIV. Estoppel by Deed 707 CHAPTER XXV. Estoppel in Pais 709 CHAPTER XXVI. Inconsistent Positions in Court 717 CHAPTER XXVn. Precedents in Pleading 724 INDEX 743 CASES CITED. A. Paoi Abbott V, Allen . 867 Aboulofft?. Oppenheimer 217»264, 308 Accidental Death Ins. Co. r. Mac- kenzie 510. 532 Achorne v. Giomme 615 Acker v. Leland 151 Ackley v. Dygert 005 Acton V, Dooley 570, 618, 620, 621 Adair v. New Rirer Co. 136 Adams v. Adams 76, 158, 168 V. Barnes 144 V. Brown 628 V. Cameron 100 ■V. Graves 54, 58 V. Morrison 664 V, Popham 582 p. Rockwell 587, 621 V. Rowe 294 Adams Co. v. B. & M. R. Co. 688, 688 Addison p. Crow 360 Adler r. Pin 557, 644, 645 p. Potter 567 Adoue p. Seeligson 567, 719 ^tna Ins. Co. v. Tyler 662 A^ar p. Young 532 Agnew P. Piatt ' 86 Alabama R. Co. p. So. Ala. R. Co. 73, 598, 666 Alabama Warehouse Co. v. Jones 201 Albany p. Watervliet Tump. Co. 684 Alliany Ins. Co. v. Bay 852 AMerson p. Maddison 574 Aldrich p. Billings 456 p. Kinney 264, 292 Alexander v. State .341 p. Taylor 126 Allebough p. Coakley 87 Alleman p. Wheeler 482 Allen r. Ashley School Fund 895, 440 p. Blunt 101 p. Butman 97 p. Pnndaa 245 r. Frazer 681,612 p. Goodnow 639 p. Griffin 614 Allen p. Hodge p. Holton p. Kellam p. Macpherson p. Maury c, Morgan p. Bundle p. Shaw p. Westbrook Alley P. Adams Ca Allie V. Schmitz Allis o, Billings p. Davidson AUum V. Perry Almy p. Thurber Alner p. George Alston V. Munford Altnian p. Klingensmith Altschul V. Poiack Alvey p. Reed Paoi 674 403 671 211, 212 6(51 148 574 695 571 685 100 497 706 629 639 472 147 844 131, 132, 134 605 American Emigrant Co. p. Iowa Land Co. 688, 689 American Tube Works p. Boston Mach. Co. . 564 Amesti p Castro 67, 86, 129 Anaheim Water Co. v\ Semi- Tropic Water Co. 584 Anderson p. Anderson 216, 302 p. Armstead 561. f>03 p. Hubble 584, 585, 596, 612, 629. 699 p. Kimbrough 73 p. Wilson 207 p. YounR 189 Andreae p. Redfleld 627 Andrews p. ^tna Ins. Co. 689 p. Durant 198 p. Lvon 637 p. Aiontgomery 302 p. School District 58 p. Smith 103 Angell p. Johnson 561 Angle p. Northwestern Ins. Co. 565 Annett p. Terry . 182 Anonymous 410 Ansdell p. Ansdell 101 xnu CASES CITED. Anstee v, Nelms Anlhonj v. Bartholomew i;. Jasper ApolloD, The Archer v. Mosae Paos 605 667 467,408 221 280, 246 Arkwrigbt v. Newbold 266, 61U, 616, 617 Armour v. Mich. Cent. R. Co. 478, 476, 623 Armstrong v. Carson 268 V. Wheeler 346, 441 Arnold v. Arnold 95. 98 V, Cheque Bank 467, 494, 629, 631, 655, 657 V. Kichmond Iron Works 497 Amott V. Redfem 268 Arthur v. Stale 2U4 Ashcraft i;. De Armond 497, 4iiS Attliley V. Foreman 699 V. Martin 556 V. Vischer 471 Ask ins v. Coe 638 Aiilin V. Parkin 76, 91, 97, 165 Athens v. Georgia Ry. Co. 671 Atkinson v, Allen 216, 306 V. McDonald 684 V. White * 121 Atlanta v. Gate City Xiras Co. 671 V. Word 671 Atlantic Dock Co. r. Leavitt 366, 857 Atlantic R. Co. v. Robbins 669 Att. Gen. v. Chicago R. Co. 160 V. Hooker 148 V. Marr 341, 698 V. Simonton 463 Audenried v. Betteley 676 Audubon. V. Excelsior Ins. Co. 60 Audubon Co. v. American Emigrant Co. ' 688 Augusta V. Port Royal Ry. 671 Aurora City v. West 100, 153 Aurora Ins. Co. v. Kranich 664 Austin V. Charlestown Female Sem. 118 r. Craven 476 Ayerill v. Wilson 346, 368, 442 Avery v. Akins 402 V. Paine 79 Ayres v. Probasco 686 B. B. C. R. & M. R. Co. V. Stewart 689 Babcock v. Camp 100 Bachelder v. Lovely 397 Badger i;. Titcomb 198 Bailey r. Bailey 118 V. Fairplay 129 r. Kilburn 611 V, O'CooDor 285 Baines v. Burbridge BairU v. Jackson V. United States Baker u. Barclif t v. Brannan V. Hale V. Home Life Ins. Co. V. Humphrey V. Johnson V. McDuffie V, Preston V. Rand V. Stone V. Stoiiebraker v. Union Ins. Co. V. Whiting Balch V. Shaw Baldwin v. Hale V. McCrea V. Kichman V. Thompson Bales V, Perry [ Balk urn v. Satcher Ball V. Hoot on Ballou V. Jones Pagi 117 687 194 99,614 687 547 664 666 668, 669. 716 642 146 276, 285 606 209 471, 478 646 88 86,690 100, 201 640 360 627 99 688 374 Baltimore K. Co. v. Vanderwarker 366 Baltzell t;. Nosier 293 Bancroft v. White 844 V. Winspear 194, 198 Bandon r. Becher 213, 217, 219 Bank v. Flour Co. 401 Bank of America v. Banks 339, 852 Bank of Australasia v. Hardin 262, 290 309 V. Nias 264, 260, 26li 266 Bank of Batavia v. Lake Erie R. Co. 608 Bank of Cadiz v. Slemmons 558 Bank of Cal. v. Shaber 149 Bank of Commerce v. Union Bank 487 Bank of Commonwealth v. Hopkins 56. 72 Bank of Hindustan v. Alison 664, 628 Bank of Ireland o. Evans Charities 457, 610, 655, 656 Bank of Lockhaven v. Mason 548 Bank of Old Dominion v, Allen 104 Bank of U. S. r. Bank of Georgia 492 V, Lee 600 v. Merchants' Bank 103, 810 V. Patton . 104 Bank of Utica v. Mersereau 433 Barbell v. Gingell 491 Barl>er v. Hartford Bank 60 V. Lamb 261 Barboro v. Occidental Grove 468 Barham r. Tuberville 606, 716 Baring v. Claggett 241 Barki*r v. Benninger 644 V. Circle 389 V, Cleveland 183 CASES CITED. XIX Paob Barlow v. Bishop 496, 4VJ8 Baniard t;. German Seminary 657 Barnes o. Gibbs 313 Barne^lej v. Powell 210, 212 Barnet v. Smith 604 Barnett o. So. London Tramways (U>. 84», 566 Barney p. Dewey I'Stt P. Douglasa 141, 314 V. Keniston 638 p. Patterson 160, 264, 2»6 Barrett p. Birge 14:^ V. Joannas 5^2 Barringer 9. Boyd 2b 1 V. King 262, 294 Barron v, Cohleigh 649, 668, 678 Barrow r. Barrow 676 V. West 180, 301 Barrows v. Kindred 129 Barrs v. Jackson 160 Barstow p. Savage Mining Ca 612 Barter v. Greenleaf 476 Bartholomew p. Jackaon 686 Bartiett p. Bangor 370 r. Kauder 688, 609 V. Knight 264 V. Wells 606 Barton p. Anderson 77, 78 p. Smith 189 Barwick v. Rackley 679 V. Thompson 613 Bascom p. Manning 177 Basher p. Wolf 686 Bassett p. Bradley 636 V. HoUirook 646 p. Mitchell 163 Basten p. Butler 170 Bates p. Ball 718 p. Illinois Cent R. Co. 341 p. Leclair 681 p. Norcross 342 Battey p. Button 77 Bauer p. Gottmanhauser 620 Baxley p. Linah 813 Baxter p. New England Ins. Co. 46, 240, 241, 260 V. Vincent 189 Baylor p. Dejamette 160 Bazemore p. Freeman 621 Beal r. Smith 822 Beall p. Beck 146 Heals p. Lewis 662 Bean p. Smith 102 r. Welsh 480 Beatty p. Kurtz 686, 668 Beaupland p. McKeen 617, 716 Becquet p. McCarthy 261,262, 268, 302 Beddow p. Beddow 70, 71 Beebe p. Knapp 610 p. Swartwout 367 Beekman Street, In re 68 Paoi Beeman v. Duck 483, 486, 488 Bvere p. Fleming 69, 202 Behler p. Wf>bum 600 Belirens p. Germania Ins. Co. 639 Belcher p Chambers 204 Bell p. Banks 105 p. Craig 666 V. Dagg 134 p. McCulIoch 100 p. Shafer 649, 667 r. Todd 370 Bellas p. McCarty 436 Bellcairn, The 68, 72, 73 Belle of the Sea 678 Bellinger p. Craigue 176, 178, 183 Belmont p. Coleman 187 Belolt p. Morgan 100 Belshaw p. Muses 162, 168, 154, 169, 172 Bemis p. Call 509 Bendernagle p. Cocks 194, 198 Benjamin p. Gill 654 Bennecke v. Ins. Co. 662 Bennett r. Dean 678 • p. Denny 63, 284 p. Farnell 486 p. Hood 122 p. Judson 610 p. Van Syckel 718 Bennitt p. Star Mining Co. 186, 153 Bensley p. Burdon 897, 424, 440 Benson p. Bennett 472 p. Matsdorf 97, 165 Benton p. Benton 514 p. Burgot ^64 Berger v. Williams 187, 146 Berkley p. Watling 476 Bernard p. Hoboken 100, 101 Bernardi p. Mutteux 237, 241, 248 Berringer p. Payne 194 Bethlehem p. Watertown 232 Betteley p. Reed 561 Betts p. Brown 622 p. New Hartford 114 p. Starr 90, 183 p. Wurth 606 Bevens p. Weil 661 Beveridge v. New York R. Co. 101 Beverly p. Lincoln Gaslight Co. 609 Beymer p. Bon sail 124 Bickerton v. Walker 473 Bickett p. Nash 80, 143, 346 Bickford r. First National Bank 604 Bicknell p. Field 808 Biddle p. Bond 648, 660, 661, 562 p. Wilkins 702 Riddulph P. Ather 229 Bigelow p. Foss 715 V. Winsor 58, 88, 99 Biggins p. People 84, 152 Bilsland p. McManomy 111 Bimeler p. Dawson 264 CASES CITED. Binck V. Wood Bingham v. Weiderwaz Birch i;. Funk V. Hutchings V. Wright Birckhead v. Brown Birdsey v. Butterfleid Birke v. Abbot Bishop V. Hay ward i;. Lalouette Paob 77 486 68 688 648,644 188 673 371 111 511, 614 Bissell i;. Briggs 264, 266, 268, 2U0 V. Jeffersonville 469 V. Kellogg 114, 160, 161 V. Spring Valley 66, 67. 80, 90, 168, 189, 468 Bivins v. Vinzant 487 Bixby 17. Adams Co. 689 Black V. Dressell 686 Blackburn v. Bell 876, 627 V, Craw fords '227 Blackball t;. Gibson 869, 876, 382 Blaokham's Case 210, 229 Black River Co. v. Clarke 466 Blackwood v. Brown 185 Blain v. Harrison 449 Blair v. Bartlett 176 t'. Wait 629 Blake v. Bunbury 676 V, Douglass 118, 204 V. Exchange Ins. Co. 662 V. Fash 713 V. Foster 393 V, Sanderson 614 Blake Crusher Co. v. New Haven 617 Blakeslee v. Mobile Life Ins. Co. 399 Blanchard v. Brooks 402. 408 V. Ellis 430, 431, 484 r. Tyler 838 Blanchct v. Powell's Ca 476, 622 Blasdalc v. Babcock 134 Eleven v. Freer 476, 667 Blight V. Rochester 346, 368, 442 Bliss V. Keweah Canal Co. 467 Block r. Comra'rs 376, 409 Blodgett v. Dow 69, 164 V. Jordan 822 p. Perry 669, 678, 682 Bloomington v. Brokaw 688 Blount r. Darrach 268 Board v. Board 846. 666, 674 Board of Comniissioners v. Karp 66 V. Welch 76, 297 Board of Education v. Bakewell 684 Board of Public Works v. Columbia College 297 Board of School Directors v. Hei^ nandez 114 Bobbitt V. Shryer 661, 262 Bobe r. Stickney 100 Boho V. Richmond 622 Bodine t;. Killeen 661 Paoi Bodurtha v. Goodrich 209, 298. 296 V. Phelon 76, 177 Bogardus v, Clark 212, 282, 246 Bogg V. Shoab 399 Boggs V. Olcott 668, 693 Bohun V. Bohon 889 Boileau v. Rutlin 166 Bold Uuccleugh, The 60, 284 Bole V. Horton 887 Boiling r. Petersburg 714 V. Teel 846 Bolton V. Brewster 207 V. Gladstone 237, 241 Bond V. Carroll 846 Bonesteel v. Todd 104 Bonham v. Bishop 717 Bonomi t;. Backhouse 172 Konsall v. Isett 206, 207, 290 Boone v, Armstrong 896, 412 V. St. Paul Foundry Co. 88 Borden v. Fitch 207, 802 Borer v. Chapman 80 Bornheimer v. Baldwin 846 Borrowscale v. Tuttle 68 Bosch t;. Kassing 78 Bovquett v. Crane 164 Boston V. Worthington 138 Boston Water Co. v. Gray 69, 70, 71 Boston & W. R. Co. v. Sparhawk 216, 806 Boswell V. Otis 297 Botts V. Fultz 674 Boubede v. Aymes 719 Bouchaud v. Dias 66, 67 Boucher v. Lawson 244, 260, 303 Bouchier v. Taylor 47, 160 Bo wen v. Bowen 214, 718 V. Hastings 107 Bower v. McC^ormick 869 Bowers v. Keesecker 646, 646 Bowes V. Foster 471, 472 Bowman v. Taylor 368, 397 Bowne v. Potter 844 Box I'. Barrett 676 Boyce v. Kalbaugh 636 V. Metliodist Church 468, 467, 468, 469 Boyd V. Alabama 100, 340 V. Plumb 603 Boykin v. Cook 147, 148 Boyle V. Boyle 229 i;. Wallace 129 V, Webster 721 Boynton v, Braley 684, 612, 617 V. Morrill 87 Brnckenridge u. Howth 621 Bracket t v. People 68 Bradbury u. Cony 620 Bniden v. Graves 71 Bradley v. Briggs 162 V. Coolbaugh 719 CASES CITED. XXI Paob Bradley v. Lifce 686, 687 r. Rogers 717 BratUtreet v. Neptune Ins. Co. 221, 240, 249, 261, 290 Brady r. Huff 164 V. Pryor 163 Braithwaite v. Gardiner 497 Bramble v. Kingsbury 696 BrHiicli V. Jesup 466, 466, 686 Bnintfriff v. Harrison 688 Brannon v. Noble 138 Bransby v. Kerridge 2*29 Branson v. Wirth 341. 360 Brant v. Virginia Coal Co. 627, 629, 631 Brantley ». Wolf 606 Brasfield r. Lee 171 Braxton v. Freeman 678 Brazee i;. Schofield 846 Bree8 V. Uarlan 684 Cannon v. Home Ins. Co. 617, 602 Capital Bank v. Armstrong 4^)4 Carder v. Fayette Co. 678 Carey v. Gunnison 647 Carithers v. Stuart 3.37, 339 Carleton r. Bicklord 270, 296 t;. Wasliington Ins. Ca 203. 204, 206, 206 V. Woods 198 Carley v. Wilkins 610 Carlin v. Brackett 67 Carlisle v. McCaU 60 Carll V. Oakley 718 Carlton v. Davis 132 Carmack v. Lovett 476 Carman o. Townsend 299 Carnarvon v. Villebois 36, 234 Carolina R. Co. v. McCaskill ' 665 Carpenter v. Bulier .331, 346, 352, 358, 361, 365, 380, 381, 382, 573 p. Carpenter 603, 605 V, Pier 822 ' V. Thompson 610 Carr v. London Ky. Co. 670, 586, 629, 631, 65:3 p. Miner 214, 473 V. Townsend 119 V. United States 131, 132, 340 p. Wallace 587 Carrier o. Sears 497, 498 Carrignn v. Bozemnn 366 Carrington o. Merchants' Ins. Co. 224 Carroll v. Smith 376, 467, 46'.) Carson v. Faunt 607 V. New Belleviea Cem. Co. 389 Carter v, Bennett 274 V. Carter 70, 352 V. Doe 399 V. Fately 661 V. James 155 V. Marshall 627, 634 r. Shibles 87 Caruthers v, Crockett 622 Carver p. Astor 841, 409 p. Jackson 897, 442 Carver p. Lewis Cyarvill p. Garrigues Case V. Beauregard p. Boughtou p. Case p. li^^eve r. Shultz p. State Casebeer p. Mowry Casey p. Galli p. Inloes Casler p. Shipman Casnidy p. Carr Casile p. Noyes Paoi 230 196 89, 62, 68 610 312 136 649,568 68 725, 729 66, 629 686. (ii)Q no 67 119,136,183 Castner p. Farmers' Ins. Co. 661 Custrique p. Behrens 217, 254, 807 p. Imrie 46, 46, 49, 1 16, 22:i, 242, 247, 255, 262, 263, 264 Caswell V, Fuller 562 Catherwood p. Watson 603 Catlin p. Gilders 292 Caton p. Caton 576 Catskill Bank p. Stall 608 Cavan p. Darlington 677 Caylus cNew York R. Co. 168 Cecil p. Cecil 232 p. Early 378 Central Agric. Assoc, v. Gold Ins. Co. 466 Central R. Co. p. Smith 36, 76 Central R. R. p. Henderson 460, 466 Central Ry. Co. p. Kisch 579 Certain L^gs of Mahogany 50 Chaffe V. Morgan 6:)8 Chamberlain p. Carlisle 152 p. Furis 801 p. Gaillhrd 702, 708 p. Preble 78, i:^ p. Spargur 332, 384 Chambers p. Falkner 466 Champlain R. Co. p. Valentine 382 Chandler p. White 629 Chant r. Reynolds VM Chapin v. Curtis 57 Chapman p. Abrahams 352, 399 p. Chapman - 587 p. Crooks 622 V. Forsyth R6, 690 p. Goodnow 101, 228 p. Pingree 661, 686 p. Shepard 646 Charlestown p. County Comm'rs 618, 683 Chase p. Cheney 65 p. Haughton 141, 314 p. Walker 88 Chatauque Bank p. White 687 Chataiiqiie Co. Bank p. Risley 360 Chatfleld p. Simonson 671. 673, 709 Chauvin p. Wagner 398, 408. 440 Cheesman p. Exall 648, 549, 651 xxiir CASES CITED. Cheever v. Wilson ChelUs t*. Coble Clieney v. Selman Cheongwo o. Jones Cherry v. Robinson Cheshain, In re Cliesnutt V. Frazier Paob 246, 270 629 671, 7 i9 1^8 129 678, 676, 676 53 TO I Chester v. Bakersfield Assoc. 142 Chettle V. Pound 680 Chew 17. Barnet 486, 436, 440 Chicago V. Cameron 153 Chicago V. Chicago R. Co. 698 V. McGraw 698 V. Robbins 182, 134 V. Sexton 698 V. Wright 630 Chicago Bldg. Assoc, v. Crowell 468 Chicago Ins. Co. v. Warner 664 CiiicHgo Packing Co. v. Tilton 665 Chicago R. Co. v. JoUet 461 V. Knuffke 684 V, People 461, 621 ». Schafifer 87,171, 172 i;. Wiggins Ferry Co. 287 Chicago Ry. Co. v. Auditor Gen. 618 Chichester v, Chichester 290 Child V. Chappell 608 V. Eureka Powder Works 318, 725 Childs p. Hayman 79 Chiles V. Boothe 360 Chilton V. Scrugge 671 Ghitty r. Glenn 104 Chope 17. Detroit Plankroad Co. 840. 598 Chouteau u. Gibson 72, 99 Chrisman r. Harman 59 Christie v. Secretan 247, 249 Christmas v. Russell 216. 265, 270. 272, 282, 306, 808 Christopher. The 263 Chubb 17. Upton 470 Chudleigh's Case 425 Churchman v. Ireland 674 Churchward v. Ford 609 Cicero r. Williamson 66 Cicotte V. Wayne 583 Cincinnati v. Cameron 686 V. Dickmeier 151 V. Morgan 470 V. White 636 Cincinnnti R. Co. v. Mara 718 V. Wynne 318 City Rank v. Bartlett 684 City Bank of New Orleans v. Wel- den 67 Clapp w. Hansom 4S0 V. Tirrell 478 Claridge v. Mackenzie 618, 527 Clark V. Baker 198 f. Bryan 203, 204, 205 V. Carrington 132 V, Clark 671, 719 Clark 17. Deshon 17. Dew V. Fisher r. Hayward V. New England Ins. Co. Paoe 478 245 212 638 662 t;. Parsons 17. Sammons !7. Wiles t7. Wolf V, Young Clarke v» Clarke 17. Dunham 264,321 168 100, 187, 201 126. 137 63,81 617 119 Clarke Nat'l Bank v. Bank of Al- bion 604 Clary t\ Hoggland 208 Clauser v. Jones 699 Clay V. Buchanan 64, 722 t;. Smith 86. 672, 6^0 Clay Ins. Co. v. Huron Salt Co 468 Cleaton t7. Chambliss 81 Clemen tson v. Gandy 677 Clerk V. Withers 643 Cleveland v. Creviston 86 Clews V. Bank of New York 486, 499 V. Bathurst 229 Clink 17. Thurston 699 Clinton v. Haddam 617 Clinton Bank v. Hart 107 Close V. Glen wood Cem. 464, 466 Cloud t;. Whiting 681 ( -lough 17. London Ry. Co. 683 Coakley v. Perry 860 Coari v. Olsen 683 Cobb t7. Arnold ' 533 V, Curtiss 177 17. Fisher 880, 882 Coburn v. Goodall 152 V. Palmer 638 Cochran t7. Arnold 466 Cockburn v. Thompson 186 Cocke V. Brogan 399 Cocks V. Masterman 490 Codington t7. Lindsay 676 Coe r. Clay 408 ?7. Gerst • 698 Cofifey V. United States 162, 167, 226 Coffin V. Knott 67 C(»ffman v. Brown 66 Coggill 17. American Bank 483, 484, 486 Cohen V. Teller 491, 492 Coit V. Beard 56 V. Haven 208 Cole r. Favorite 136 r. Lafontaine 699 r. Raymond 481, 432, 446 17. Stone 822, 706 Coleman r. McAnulty 119 V. McMurdo 148. 318 17. Peurce 611,699 17. Pike 684, 686 Coles 17. Allen 143 Coles V, Soulsby Collier v. Gamble Colling wood v, Irvin Collins 9. Bartlett V. Bennett V. Jennings V. Loft t lis V. Mitchell V. Wood Collis 0. Emmett Coloma V. Eaves Colonial Bank o. Hepworth 495^ 672 Colonius V. Hibernia Ins. Co. Colquitt V. Smith Colt 17. Partridge 61 Colter V. Calloway 688 Columbet v. Pacheco 621 Columbian Ins. Co. v. Lawrence 664 Columbus V. Dalme 6'i6 Col V in V. Cor win 198 Colwell V. Brower 661 Combes i;. Cdandler 662 Comings v. Wellraan 382 Commercial Bank v. Pfeiffer 464 Commissioners v. Bolles 464 Commonwealth v. Andr^ 341 V. Blood 205, 261, 262, 294 V. Dudley 672 V. Green 270, 273, 291 V. Moltz 687, 617 V. Reading Bank 468, 4^9 p. Rourke 662 V. Sherman 467, 606, 607 Companies Acts, In re 349, 467 Compher o. Anawalt 281 Compton V. Sandford 719 Comst(x:k v. Smith 372, 400, 403 Conaiit V. Newton 349, 866 Conard o, Atlantic Ins. Co. 476 CoHiMia V. Concha 46, 47, aS. 102, 221, 222, 223, 230, 231, 232, 237, 241, 245. 246, 247, 248, 675 Concord v. Bellis . 600 Congregational Soc. v. Perry 466 Conkey v. Unwthorne 638, 645 Conklin v. Barton 664 V. Conklin 674 Connecticut Ins. Co. v. Schwenk 671 Connelly v, Connelly 244 Connihan v. Tliompsoa 673, 679 ConnoUy v. Branstler 603 V. Connolly 230 Connor v. Eddy 869, 412 p. Martin 496 Conrad v. Lane 606 Continental Bank v, Natl Bank 600, 685, 629, 639 Conway v. Ellison 281 Con well V. Mann 611 Cook p. Burnley 69, 152 V. Field 138 CASES CITED. XXV Pasb Paok 477 Cook 17. Hamet 598 408 17. McCahiU 671 184 17. Parham 847 358,442 V, Pridgen 666 176 17. Sholl 225 60 17. Steuben Bank •276 186 V. Thorn hiU 276 378 r. Toumbe 840 674 Cooley V. State 671 485 Coons V. People 685 469 Cooper 17. Adams 638 495^ 672 17. Blandy 511 638 17. Meyer 485, 4t^6 662 17. Peck 567 V. Reynolds 49, 62, 275. 297, 802 17. Watson 345, 846, 856 V. Witbara 604 Copeland v. Copeland 715 Copin 17. Adamson 265, 289 Copper Mining Co. v. Ormsby 557 Corbet's Case 22^) Corbett v. Brown 579 Corbley v. Wilson 116 Corcoran v. Chesapeake Canal Co. 102, 131, 186 Corder v. Dolin 647 Corey v. Gale 76 V. Ripley 802 Corkliill V. Landers 620 Corning v. Troy Iron Factory 593 Cornish v. Abington 684, 632 V. Searell 628, 581, 539 Corrothers v. Sargent 99 Corry v. Gaynor 688 Corwith 17. Culver 462 Cotes 17. Davies 496 Cotliran r. Brower 73, 460 Cotton 17. New Providence 4r)9 Counterman v. Dublin 465. 689 Counland v. Willis 172, 706 Coventry v. Great Eastern Ry. Co. 475. 586, 612, 616, 62*2, 655, cm Covert V, Nelson 138 Covington & L. R. Co. v. Bowler 137 Cowell 17. Springs Co. 847, 466, 466 Cowles 17. Marks 340 Cox 17. Bruce 849, ft«6 V. Rogers 674 V. Thomas 206, 873, 6'.^ Coxe V. NicholU 281 Craddock i7. Turner 146 Crafts 17. Clark 70r> Cramer v. Moore <')«.< Crane v. Maginnis 244 17. Morris 360 17. Reeder 841 Cravens i7. Kitts 629 Crawford t7. Howard 205 r. Jones 51 1 17. Nolan 698 17. Turk 146 XXVI CASES CITED. Crawford o. White D. Whittal Crawley t;. Isaacs Oreagh v. Blood Crenshaw v, Julian Crest V. Jack Crichlow v. Parry Crime v. Davis Croft V. Johnson Crofton V. Cincinnati Crofts V. Middleton ao5 267 2bl 525 117 587 483 577 60 152 898, 424 Cromwell v. Sac 76, 78, 80, 87, 90, 9tf, 153, 166, 169, 186, 187, 188, 189, 220, 376, 469 Cronan v. Frizell 131 Cronin v. Gore 622 Crouk V. Trumble 717 Cropper v. Smith 638 Crosland v. Murdock 211, 212 Cross V. Kansas 6U2 Crossan v. May 581, 639 Crossiey t;. Dixon 553 Croudson v. Uonard 45, 221, 222, 240 Crout V. De Wolf 4U1 Croxall i;. Shererd 547 Cruger v. Dougherty 669, 683 Crum V. Boss 88. 164 Crumb v. Wright 845^857,545» 546, M7 Crusoe v. Butler 245 Cumberlsnd Coal Co. v. Jeffries 66 Cumberland K. Co. t*. McLanalian 666 Cummings v. Banks 264 r. Powell 845; 346, 358 Cummins i;. Agricultural Ins. Co. 571 Cunningham v. Ashley 146 V. Goelet 290 V. Milner 662 V. Shanklin 840 Cupp t'. Campbell 600, 603, 604 Curleev. Smith 346 Cumen v. New York 461 Curran ». Bnrdsall 446 Curtis V. Calvin 538 V. Gibbs 268 V. T^avitt 160 V. Spitty 509 CnrtisB t*. Beardsley 812 Ciirvea v. Berry 713 Gushing v. Laird 101. 102, 221, 2*"2 Cuthbertson ». Irving 362, 863, 530. 540 Cuthrell v. Hawkins 396, 428 Cutler r. Bower 372 V. Dickinson 873 Cutter r. Evans 128, 146, 150 r;. Waddingham 360 Cutting V. Carter 70 Cyphert v. McClone 281 D. Pass Da Costa v. Villa Real 229 Daggett t*. Daggett 153 Dahlman v. Forster 86 Dair v. United States 562 Dale V. Turner 699 Dalgleish v. Hodgson 241 Daltoh v. Whittem 687, 718 Damouth v. Klock 684 Damp V. Dane 692 Dancer t*. Hastings 589 Dane v. Gilmore 182 Danforth v. Adams 620 Daniel v. Morton 717, 719 Daniels v. Edwards 661 u. Equitable Ins. Co. 638 17. Henderson 116, 154 V. Tearney 852, 467, 673, 689, 690 Darby v. Mayer 212 D'Arcy v. Ketchum 270 Darke v. Bush 571 Darley Colliery Go. v, MitcheU 171, 172 Darlington t*. Gray 69 V. Pritchard 738 Darst V. Gale 467 Dashiel v. Collier 344 Davenport v. Ciiicago R. Co. 85 V. Tarpin 620 Davenport R. Co. v, Davenport Gas Co. 578, 611 David r. Park 627 V. Porter 272 Davidson's Appeal 599 Davidson v. Sharpe 816 V. Shipman 152 V, State 119, 127, 130 V. Toung 600, 629. 638 Davies, Ex parte 552 Davies v. New York 194 Daviess v. Dickinson 467, 470 Davis V. Bean 60 V. Bowmar 582, 629, 638 V. Brown 90, 169, 188, 480 V. Callahan 562 V. C. R. Co. 572 V. Connelly 279 V. Davis 514, 715 V, Dyer 639 V. Hedges 177, 179, 181, 182. 187 V. Henry • 69, 70, 621 V. McCorkle 99, 152 v.Iiainsford 870 V. Russell 475 V. Shoemaker 510, 708 V, Smith 629 V. Tallcot 175, 176, 178 V. Tingle 608 u. Tyler 610 r. Zimmerman 608 Davis Machine Co. v. Barnard 114, 280 Dawley v. Brown 84, 129 OASES CITED. XXVU DawsoD V, Mann Day V. Case V. Hartshorn V. Perkins Dean v Colt V. Doe 9. Thatcher De Armond v. Adams Decherd v. Blanton Decker v, Adams DecDrah Mill Co. v. Greer Paob 191 180 101 709 40tS 409 73 215 873 76 617 De Cosse Brissac ". Rathbone 260, 261 De Ende v, WUkinson 281 Deery t-. Cray 382 Deford v. Mercer 68o De La Guerra v. Newhall 86 Deiancey r. McKeen 600 Delaney v. Dutcher 331 V. Fox 622, 541 Delanney v. Burnett 60 Delano r. Jopling 294 Delaplaine r. Hitchcock 713 De La Vega v. League 70 Delmege v. MuUins 517 Delplii V. Startzman 699 Delta, The 100 Demarest v. Darg 100, 102 De Mill V. Mo£fatt 713 Deming v. Darling 578, 574 De Mora v. Concha 45, 46, 47, 48, 93, 102, 221, 223, 224, 230, 231, 232. 237, 241, 245. 246, 247, 675 Dempsey v. Ins. Co. of Penn. 241 Den V. Ay res 212 V. Reddick 63 d. Bufferlow v. Newsom 542 d. Gilliam v. Bird 346 d. G randy v. Bailey 542 d. Johnson v. Watts 345 d. Love V. Edmonston 547 d. Love V. Gates 846, 442 d. Williams v, Bennett 542 Denegre v. Hann 101 Denison u. Hyde ^7, 293 Denman r. Nelson 377 Denn v. Cornell 360, 397 Dennetts. Chick 109 Denny v. Bennett 53, 114, 284 V. Willard 642 V. Williams 198 Dent V. Ashley 318 p. Smith 262 Denton v. Noyes 281 V. Stewart 614 De Proux v. Sargent 100 Derby v. Jacques 55 V Johnson 194 De Rochemont v, B. ft M. B. 332 Derry v. Peek 610 Deslonde v, Darrington 230 Despard v. Walbridge 588 Pass Destrehan v. Scudder 280 Detroit Ry. Co. ». Hayt 723 Devens t?. Mechanics' Ins. Co. 663 Devin v. Ottumwa 135 Dewey v. Bell 681 V. Field 873, 874, 476, 549, 567. 568, 569, 646, 665, 710 Dexter v. Clark 55 Dey V. Dox 77 DezeU v. OdeU 373, 374, 476, 5G7. 646, 709 Dickerson v. Colgrove 715 Dickinson u. Goodspeed 538 V. Hayes 150, 161 Diehl V. Zanger 621 Diilett i;. Kemble 621 Diliinger v. Kelley 53, 56 Dills V. Hampton 542 Diossy V. Morgan 567 Divoll V. Atwood 60 Dixon V. Merritt 152 Doak V. Wis well 176 Doane v. WiUcutt 840, 875, 402, 404, 410, 449 Dobbins v, Cruger 895 V. Hyde 189. 140 Dobson t;. Culpepper 513, 533 V. Pearce 202, 304. 305 Doddv. Una 51, 114,252 u. Williams 438, 441 Dodge V. Gaylord 71 u. Pope 666, 627 V. Stacy 715 Doe u. Derby 143, 348 V. Harlew 129 V. Huddart 129, 698 V. Skirrow 348 V. Thomas 129 V. Wellsman 733 d. Baggaley v. Hares 850 d. Brinegar v. Chaffln 382 d. Bristow v. Pegge 508 d. Bullen v. Mills 511, 512, 513, 520 d. Butcher v. Musgrave 878 d. Chandler v. Ford 351 d. Christmas v. Oliver 417 d. Clun V. Clarke 534 d. Higginbotham v. Barton 522, 536, 538, 544 d Hornby r. Glenn 337 d. Hurst V. Clifton 515 d. Jackson v. Wilkinson 511, 582 d. Johnson v. Bay tup 516, 542 d. Knight v, Smythe 507, 513, 516, 537 d. Levy v. Home 850 d. McPherson v. Walters 718 d. Marchant v. Rrrington 348, 897 d. Marriott v, Edwards 538 d. Morris v. Rosser 716 d. Ogle V, Yickers 615 XXVIH CASES CITED. Paok Doe d. Plevin v. Brown 623, 626 d. PotU V. Dowdall 432 d. Preece u, Howells 361 d. Slielton t;. Slieltun 876 d. Stevens t\ Hays 361 d. Strode v. Seaton 891, 420 d. Taylor v. Sliufford 841 d. Thompson v. Hodgson 720 d. Wheble v. Fuller 614 d. Worsley v. Johnson 846, 346, 867 d. Wright V. Smith 720 Doglioni v. Crispin 261 Dolde V. Vodicka 621 Dole V. Boutwell 139 Dolphin V. Robins 244, 297 Don u. Lippman 269, 289, 297 Donahue v. Klassner 368 Donald v. Gregory 143 Donaldson v. Hibner 621 t'. Winter 212 Donnell v. Hamilton 63, 72 Donohoo V. Murray 370 Dooley v. Cheshire GlaM Co. 463 V. Potter 114, 142 V. Wolcott 466 Dorlargue v. Cress 627 Dorr V. Clark 649, 567 V. Stockdale 147 Dorrance v. Seott 117 Dotterer V. Pike 60S Doty V. Brown . 183 Dougald V. Dougherty 896 Dougherty's Est. 216 Douglas V. Forrest 259, 286, 289, 297, • 801, 706 V. Fulda 131, 622 DouglflBS V. Craig 618 V. Howland . 146, 160 V. Scott 432, 488, 441, 448 Dow V. Sanborn 60 Downer v. Shaw 294, 800 Doyle V. Cobum 884 t'. Hallam 129 V. Hort 611 V. Mizner 464 V. Reilly 100 V. Wade 846 Drake r. Glover 608 V. Mitchell 108 V. Vorse 85 Drayton v. Dale 495. 406 Dresbach v. Minnis 374, 476, 649. 567, 646 Drexel v. Berney 667, 712 Dreyfous v. Adams 717 Driimmoiid t?. Prestman 150 Drury v. Foster 600, 602 Dublin t\ Chadboume 245 Dubois V. Dubois 212 Du Bose V. Ball 684 Duff V. Wynkoop 686 Paoi Du£Beld r. Scott 132 Duffy V. Lytle 726 Dugan 17. FoUett 396 Duke V. Ashby 464, 640 Dukes V. Spangler 340, 444, 678, 603 Duncan v. Bancroft 86 V. Holcomb 101 V. Ware 140 Dunckle v. Wiles 162 Dundas v. Hitchcock 374 V. Waddell 188, 202 Dunham v. Bower 162, 154, 176 V. Reilly 652 Dunklin v. Wilson 642 Dunks V. Fuller 666 Dunlap r. Clements 667 V. Cody 62, 307 V. Glidden 38 Dunn t;. Pipes 72 Dunnell Maniif. Co. v. Fawtucket 693 Dunning v. West 717 Dunshee v, Grundy 611 Dunston u. Paterson 682 Dupas t;. Wassell 469, 506 Durant v. Abendroth 62, 241, 297 V. Essex Co. 68, 63 V. Pratt 629, 687, 660 Durham t;. Alden 716 Dutchess Cotton Manaf. Co. v. Davis 466 Dutton V. Woodman 88 Du Val V. Marshall 460 Dwight V. St John 60 Dyckman v. New York 206, 207 Dyer v. Rich 382 V. Sutherland 664 Dykes v. Woodhouse 148, 318 Dynes v. Hoover 66 E. Eagan Co. v. Johnson 660 Earl V. Stevens 636 Easly V, Walker 5. Trustees of Schools 565, 693 Frierson p. Branch 684 Frink a. Darst 399 Frost u. Frostbarg Coal Co. 466 Fry V. Taylor 232 Fuller V. Eastman 60, 90, 152, 154 V. Siiattack 76 u. Sweet 527 Falton V. Fulton 678 Funk 17. Newcomer 860 Funkliauser v. How 139 Furness tj. Williams 357 Furaman o. Fursman 229 G. Gaff P. Harding 476, 567, 646 Gage V. Holmes 191 V. Pumpelly 79 Gaines v. Relf 216 Galbraith v Lunsford 600, 601,* 606, 629 17. Neyille 102, 257, 260 Gale 17. Cob urn 478 Galena & C. R. Co. v. Pound 207 Gallagher v. People 583 V. Riley 67 Galloway v, Finley 546, 546 Galpin v. Page 62, 204, 297, 801, 302 Gambetta v. Brock 117 Gammon v. Freeman 344 Ganong v. Green 660 Gans 17. St. Paul Ins. Co. 699 GansYoort o. Williams 503 Garber u. Doersom 717 Gardiner 17. Suydam 446, 475 Gardner v. Boston 692 V. Buckbee 86, 88, 96, 703 p. Greene 856 17. Keteltas 407 V, Raisbeck 153 Garland v. Jacomb 488 17. Tucker 264 Garlinghouse v. Whitwell 639 Gamett v. Macon 147 Garrard v. Haddan 494 Garrick v. rhamberlain 58 Garrity v. Thompson 667, 719 Garwood 0. Garwood 100 Gates 9. Eerby 17. Preston Gatlingv. Rodman Gaus 17. Chicago Ry. Co. Gawtry t7. Iieland Gay t7. Parpart 17. Smith Gayle v. Johnson V, Price Gaylord v. King V. Norton 17. Respass Gear v. Smith Uee V. Moss Gelpcke t7. Dubuque Gelston v. Hoyt Paqs 189 ' 175, 178 599 468 671 74, 79, 102 2U6 460, 552 344 68 69 845 219 639 470 226, 226 General Finance Co. v. Liberator Soc. 398, 408, 424, 428, 433, 439 General Nav. Co. v. Guilioa 262, 290 George v. Bischoff 365 V. Swafford 595 17. Tate 567 Georgia R. Co. v. Hamilton 683 German v. Clark 578 German Sav. Inst. t7. Jacoby 583 Germoifd v. People 351 Gerrish 17. Black 168 Gibbs V. Bryant 107 17. Thayer 406 Gibson r. Chillicothe Bank 475 17. Chouteau 398 17. Kirk 509 17. Lyon 129 17. Minet 486 17. Rees 102 Giddens v. Crenshaw 661 Gilltert t7. Manchester 669 Gilbreath t7. Jones 112, 699, 702, 703 Gill V. Fauntleroy 847 17. Grand Tower Co. 406 V. Hardin 584 . 17. Read 228 Gillespie v. Nabors 605 Gilleit V, Hill 647 17. Wilev 631 Gilman r. Haven 359 . 17. Hoare 892 V. Lockwood 86, 672, 600 Gilmore v. Fox 691 Gilston V. Codwise 217 Gingrass v. Iron Cliffs Co. 587 Ginnett v. Whittingham 65 Girard Bank i*. Bank of Penn. 504 Glanvill, In re 676 Glasgow V. Baker 834 17. Lowther 264 Glazier 0. Streamer 578 Gleason v. Dodd 291, 295 Glidden 17. Strupler 600, 602 Gloucester Bnnk v. Salem Bank 493 Glover v, Benjamin 719 XXXll CASES CITED. Glynn p. George Goble v: Dillon Godard^v. Gray Paob 642 76, 179, l62 222, 238, 242, 2G2, 268, 266, SOU Goddard's Case 697 Goddard v. Merchants' Bank 489, 490 V. Henner 685 Godfrey v. Brown 721 Goeing v. Outhouse 639 Goff u. Dabbs 73 Goit 17. National Ins. Co. 471 Golconda t-. Field , 638 Gold V. Canhara 2C0 Golightly V. Jellicoe 69, 166, 190 Gonzales v. Hukil 839 Goodall V. Marshall 321 Goodel V. Bennett 406 Goodell V. Bates 482, 402 Goodenough v. Fellows 839 Goodman v. Kiblack 111, 114 V. Pocock 194 V. Randall 365 V. Winter 230, 467, 606, 607, 712 Goodnow p. Litchfield 114 Goodrich v. City 82, 100 V, Jenkins 270, 281 * V. Reynolds 687 V. Yale 194 Goodson V. Beacham 440 Good t itle v. Bailey 897, 407,, 409 Goodwin v. Robarts 672 Gordinier*8 Appeal 129 Gordon r. Whitehouse 726 Gore V. Brazier 621 Gorham v. Brenon 806 V. Dodge 674 Gorrisson, Succession of 233 Gorton v. Roach 848 Gosling V. Bimie 660, 649 Gottfried v. Miller 446 Goucher v. Clayton 74 Goudy V. Hall 207 Gould V. Evansville R. Co. ■ ^8 V. Hayden 104, 313 Gouldsmith v. Coleman 337 Goulddworth v. Knights 363 Gove ». White 620.716 Grace i;. McKissack 6GI V. Martin 78, 146 Grady i'. Porter 555 Graham v. Boston R. Co. 186, 137,217. 219, 304 V. Graham 402 P. Long 117, 204 V. Monsergh 274 V. Railroad Co. 102 Grand Tower Mining Co. r. Gill 346 Grand Trunk Rv. Co. v. Dyer 669 Granger v. Clark 306 V, Parker 626 Grant v. McLachlin 246 Paob Grant v. Norway 476 V. Parham 460 o. White 612 Grantham v, Kennedy 117, 1 18 Grattan v. Metropolitan Ins. Co. 686 Gravenor v. Woodhouse 628, 631 Graves v, Colwell ^ 366 w. Key 471, 472, 668, 660, 631, 7 14 V. Lake Shore R. Co. 674 Graw r. Bayard 666 Gray v, Agnew 617 V. Crockett 686, 690, 603 V. Dougherty 66 V. Gray 67, 468, 683 V. Hodge 64 V. Johnson 610 V. MacLean 374 V. McNeal 206 V. Wilson 68 Graybeal v. Davis 660 Great Falls Manuf. Co. t;. Worster 214, 366, 876 Greaves v. Middlebrooks 61-8 Green's Appeal 366 Green v. Branton 117 V. Clarke 126 V. Glynn 163 V. Hamilton 78 V. Kemp 371 V. Lycoming Ins. Co. 698 V. Sarmiento 268, 272 V. Starr 103, 311 r. Van Buskirk 275 V. Walker 696, 698 r. Wardwell 499 V. Weaver 153 Greenabaum v, Elliott 76 Greenaway v. Adams 614 Green Bay Canal Co. v. Hewitt 179, 182, 869, 467, 612, 723 Greenby v. Wilcocks 622 Greencastle v. Black 692 Greene v. Greene 217 V. Smith 611, 620, 621 Greenfield Bank v. Crafts 485 t;. Stowell 494, 666, 632 Greenup v. Crooks 706 Green vault v. Davis 622 Greenville R. Co. r. Joyce 719 Gregg u. Von Phul 687 r. Wells 661, 684, 606, 666 Gregory u, Doidge 623, 626 V. Hobbs 182 V. Peoples 446 Gresham u. Ware 671 Grider v. Driver 666, 666 Grid ley v. Hopkins 661 Griefs wald. The 236, 261, 253 Griffeth v. Brown 681 Griflin v. Eaton 271 V, Lawrence 066, 666 CASES CITED. zxxm Griffin v. Nichols V. Rusdell 17. Seymour V. Wallace Griffith V. Clarke Grigg8 V. Gibson Grignon v. Astor Grim's Appeal Grimes v, Tafl Grimmet v. Henderson Grissler v. Powers Grisson v. Reynolds Grist V. Hodges Griswold v. Haven r. Hill V. Seligman Grosholz V. Newman Groton Bank v. Batty Grout p. Chaml)erlin Groves v. Blondell Grusenmeyer r: Logansport Gudger v. Barnes Guen V. Gouvemeur Guernsey v. Carver Guest V. Burlington Opera House Pass 584 607 63.57 153 116, 204 675 252, 286 599,602 458 146 651,652 140 522 473, 565, 566 103 568, 642 345,358 G66 318 638 66 5t7 77 194, 198 Co. Gofifey r. O'Reiley Guicliard v. Brande Guild 0. Thomas Gulf R. Co. V. Gordon Gunn V. Howell Gumsey v. Edwards Guthrie v. Howard V. Quinn Gwinn c. Smith H. 638 586,699 638 566 638 140, 252, 281 219 117 580 345 Hackett v. Callender 637 V. Ottawa 876, 469 Hadley v. Slate 545 Hager r. Burlington 617 V. Spect 143 Haf^rman v. Ohio Bldg. Assoc. 463 Hagey r. Detweiler 621 Hahn v, Kelly 204 Hailey v. Boyd 146 Haines v. Dennett 480, 557 Hains v. Gardner 844 Haldeman v. United States 72 Hale V. Milwaukee Dock Co. 475, 623 V, People 290 V. Skinner 449, 571, 620, 716 Halifax Union r. Wheelwright 494 Hall V. Armor 149 V. Benner 530 V. Blake 141 r. Butler 524, 629 V. Callahan 598 r. Cavanaugh 629 Hall i;. Fisher r. Hamlin V. Jackson Co. V. Levy V. Matthews V. Odber t;. Si gel V. Stryker V. Tinimons V. Williams Pass 587 215, 216 638 154, 188 837 290,309 137 150 606 270,274,291,292, 296,300 V. Winchell 283 Halliday v. McDougall 2.^9 Hallifax v. Lyle 497 Hal lock V. Dominy 66 Halloran v. Whitcomb 620, 715 Hanibleton v. Central Ohio R. Co. 639 V. Veere 171 Hamilton tx Cutts 521 V. Dutch East India Co. 261 V. Houghton 102 V. Marsden 530 V. Quimby 168 V. Zimmerman 571 Hamilton Hydr. Co. v. Cincinnati R. Co. 542 Hamlet v. Richardson 181 Hamlin v. Hamlin 718, 714 V. Sears 669 Hammerslough v, Cheatham 699 V. Kansas City Association 572, 573 Hammond v. Wilder Hamner o. Pounds Hampton v. McConnel Hanchey v. Coskrey Hancock v. Welsh Haney v. Ray Hanham v. Sherman Hanley v. Donoghue V. Foley Hanna v. Read Hannah p. Collins Hannon v. Christopher Hanrick v. Patrick Hanson v. Chiatovich Haralson v. George Harbaugh t;. Albertson Harbin v. Bell Harden v. Darwin Hardigree r. Mltchum Hardin v. Palmerlee Harding v. Hale Hard man r. Willcock Hardy v. Akerly V. Chesapeake Bank r. Mills V. Nelson Harlow v. Marquette R. Co. V, Pike 216, 806 152 270,306 53 128 394 75, 76, 85, 186 206, 275, 276, 296,806 97 90,95 895 862, 363, 396 402,403 698, 699 200 290, 722 684 839 561 200 83 5ol 621 629, 631 152 859 on 219 XXXIV CASES CITED. Paok Harmon v. Auditor of Pablic Ac- iOunt8 102, 13d, 187 V. Bircliard 140 Harness v. Green 273, 286 Harriman v. Graj 405 Harris v. Brooks 578 V. Hardeman 204 V. Harris 153 V. Kirkpa trick 638, 642 V. Mulkern 97, 165 V. Willis 205 Harrison v. Phoenix Int. Co. 76 V. Ho wan 212 V. Stewardson 130 V, Wilkin 667 Harshey r*. Blackmarr 293, 805 Harsliman v. Knox las Hart V. Bullion 573 V. Cummins 281 V. Giles 617 V, Grejyg 395 V, McNamara 47, 223, 224 Harter v. Kernochan 876, 469 Hartman v. Ogborn 117, 216 Hartshorn i;. Potroff 688 Hartung v. Witte 620 Harvey r. Farnie 244 V. Morris 547 V. Osborne 135 Haskell v. Putnam 519 Hass V. Plautz 620 Hassell v. Hamilton 280, 281 HasseLman v. U. S. Mortg. Co. 846, 466 Hastings v. Pepper 475 Hatdt V. Bullock 506 V. Coddington 200 v. Kimball 715 V. Spofford 108, 811 Hatcher v. Dillard 230 Hatchett v. Berney 149 Hatfield v. Hatfield 229 Hathaway v. Noble 562 Havves v. SImw 521, 583 V. Watson 650, 647, 649 Hawkes v. Orton 522 V. Truesdell 51, 729 Hawkins p. Methodist Church 561, 639 Hawks r. Munger 565 Hawksford u. Gi£fard 290 Haw ley v. Simons 84 V. Smith 71 Haws V. Tieman 56 Hawthorne v. East Portland 684 Haxtun v. Sizer 374, 567 Hayrlock v. Coope 685 Hayes v. Livingston 713 r. Virginia Protection Assoc. 699 Haymond v. Camden 203 Hayne v. Maltby 868, 873 Haynes r. Ordway 187 V. Steyens 359, 412 Haynes v. Thomas Hays i\ Askew V. Reger Hazard v. Irwin Hazen v. Reed llealy v. Root Heane v. Rogers Heard v. Hall Paob 636 382 696 352 97 273 658,559,631.714 838, 718, 714 Heath v. Crealock 898, 408, 424, 428 V. Frackelton 100 V. Franklin Ins. Ca 662 V, Keyes 569 Heck V. Fisher 603 Hedgepeth v. Rose 666 Hefferman v. Porter 65 Hefner v. Dawson 581 V. New York Life Ins. COc 75, 114 V. Vandolah 572, 638 Helena, The 42, 238 Helena v. Turner 466, 514 Hemenway v. Wood 152 Hemphill v. McKenna 86 Hendershot v. Henry 678, 608 Henderson v. Hartman 562 V. Henderson 158, 260 V. Price 685 Hendriiks v. Kelly 617, 713 Hendrickson v. Hinckley 202 V. Norcross 100, 201 Henley v. Robb 338 Henrick & Maria, The 251, 253 Henry T. Gilliland 661,672 Henry Co. v. Winnebago Drain Co. 685 Hentz V. Miller 662 Herbert v, Fera 61 Herbst v. Smith 67 Hem V. Nichols 501, 502, 604 Uerrick t* . Belknap 68 V. Malin 678 Hertzberg v. Beisenback 407 Hewett V. Currier 684, 719 Heyn v. O'Hagen 646 Hibshman v. Dulleban 164 Hickling v. Wilson 692 Hicks t>. Cram 620 Hide & Leather Bank v. West 475 Higginbotham v. Corn well 678 Higgins, Ex parte 107 Higgins ?;. Chicago 688 Hightower v. Overhaulser 692 Hilbourn v. Fogg 517, 620, 687 Hill V. Bain ^ 114, 121 V. Den 832 V, Hill 571 t;. Huckabee 64, 64, 460, 682, 722 t*. Manchester 869 V. Minor 334 V. Moore 68 17. Morse 152, 153 17. Nisbet 6S4 17. Tucker 818 CASES CITED. XXXV Paob Hill a. West iUU HAUuik V. Traders' Ins. Co. 61 i Hills V. Laming 872, '6io V, Miller 608 r. Sherwood lol HHickiey v. Greany ttOo Hitiilson r. WeatheriU 211, 212 Hiiie c. K. & D. R. Co. 1 14 Hirth w. Ffeifle 13.1 ll'w V. Baltimore R7. Co. im liitclic«K:k r. Alcken 264, 2b7 r. Fortier 412 V. Galveston 4b7 p. Uarrins^m 314 Hitchin c^. Campbell 109, 200 Hitch man v. VValtmao 544 Hobbs u. Duff 1!K) p. Henning 241 V. McLean 185 Hoboken v. Penn. R. Co. 860, 861, 395 Hockaday r. Skeggs 286 Hodges V. Latham 3:^ p. Powell 601 V. Spicer 607 Hodgson, In re 108 Ho8on V. Watts Jdliffe V, Baker Joll.ffe, Kx parte Jolly V. Arbuthnot Jones P. JEtDtk Ins. Co. r. Bow o. Burnham t7. Clark p. Clouser V. Congregation of Mt Zion V. Cowles V. Darch r. De Graffenreid V. Dorr Pass 186 834,371 442 610 245 363, 639, 540 124 V. Drewry V. Gallatin V. Gerock V. Gregory V. Hawkins r. Jamison V. Kearney p. Ring V. Long V. McPbillipt V. Morris V. Oswald V. Powell 229 553 683 678 719 711 495 129 639 271, 272 873 274, 276, 674 211 203,561 813 603 403 131 64, 657, 722 332 184 608 r. Reese 339, 899, 450, 644, 545 V. Richardson V. Ritter V. St. Johns College V. S(»nland V. Stanton V. Underwood V. Weatherbee Jordaine v. Lashbrooke Jordan v. Faircloth V. Money V. Phelps Jourdan v. Jourdan Joumeay v. Gardner Jourolmon v. MassengiU Jowers V. Phelps Joyce r. Williams Josiioe 17. Commonwealth K. 201 160, 205 68 498 411 65 188 480,657 100 674, 576 76 409 672 702 661,586 603, 621, 622 89 Kaehler v. Dobberpuhl 718 Kane v. Bloodgood 686, 545 Kane County v. Herrington 600 Kanne v. Minneapolis Ry. Co. 53 Kansas Pac. Ry. Co. v. Dunmeyer 845 Kearney v. Dean 227 Keate v. Phillips 456, 557, 668, 599 Keater o. Hock 57 Keating v. Ome 578 Keeler v. Yantuyle 687 Paok Keen v. Coleman 602, 004 V. Hartman 604 Keenan v. Missouri Ins. Ca 664 Keer v. Uitt 620 Keiffer v. Ehler 60 Keith V, Goodwin 662 V. Keith 846 Keller v. Equitable Int. Co. 627 Keiley v. Donlin 100, 152 V. Mize 216 V. Sute 306 Kellogg V. Ely 691, 692 V. Smith 619 Kelly V. Dutch Church 134 V. Seward 895 V. Turner 839 Kelso's Appeal 671 Kemp 17. Lyon 720 Kendal v. Talbot 58 Kendall v. Hamilton 107, 108 V, Titus 118, 466 Kenieott v. Supervisors 469 Kenn's Case 229 Kennedy v. Brown 872 V. Cassilis 244, 260 c. Georgia Bank 203 17. Re, 604 Klenk v. Knobel 840, 450 Klinesmith v. Socwell 684 Knapp r. Abell 274, 286 r. Marlboro 132 Knibhs V. Hall 191 Knight V, New England Worsted Co. 198 r. Thayer 117, 840, 432 V, Wart 718. 714 Knights V. Wiffen 473, 540, 667. 639, 645, 646 Knott V, Cunningham 112 Knoufif V. Thompson 595, 627 Kncfwies v. Gaslight Co. 206, 206, 705 Know 1 ton v. H anbury 58 Knox V. Clifford 563 V. Higfrinbotham 450 V Sterling 134 V. Waldoboroogh 55 Knox Co. V, A spin wall 469 V. Wallace 469 Koons r. Davis 402, 581, 612 Kortz V. Carpenter Kothman v. Markson Kraft V, Baxter Kramph p. Hatz Kraus v. Thompson Krekel v. Kreichbaum Krekeler v, Ritter Kronprinz v. Kronprinz Kuhl V. Jersey City Kunzie i;. Wixom L. Pass 522 684 569 134 136 684 699 53, 68. 72, 73 473, 620 673 Lackland v. Stevenson 683 Lackman v. Wood 605 Lacy V, Johnson 547 Ladd V. Durkin 148 v. Putnam 60 Ladrick t;. Briggs 569 Lainson v. Tremere 361, 866, 367, 868, 869,807 Lake v. Graham 876, 467, 469 Lake Shore Ry. Co. v. State 85 1^11 V, Pershad 61 Lamb v. Gatlin 74, 102 V. Trowbridge 567 r. Walker 171, 172 Lampon r. Corke 380 Lamprey v. Kudd 119 Lamson v, Clarkson 517 Lancaster's Appeal 280 Land Co. r. Saunders 341 Landis v. Hamilton 114, 127 Landon r. Litchfield 669, 688 Lane v. Degberg 226 V. Miller 666 Lang V. Holbrook 243 Langan v. Sankev 459, 674 Langdon v, Doud 574. 575 Langford v, Selmes 301 , 394 Langmead v. Maple 58, 704 Langton v. Lazarus 487 Langworthy v. Baker 205 Lanigan v. New York 69 Lansing v. Gaine 503 r. Van Alstyne 522 Lantz V. Maffett 131, 208 Lapham r. Briggs 296, 818 Lapping f. Duffy 472 l>nrkin r. Mead 662 Larkins v. Mason 146 Latham v. Edgerton 207 Lathrop v. Kneeland 568 Latine v. Clements 318 Latiolais v. Citizens' Bank 466 Laub V. Trowbridge 688, 644 Laughlin v. Mitchell 571 La ugh ton v. Atkins 245 Laverty r. Burr 503 V. Moore 620 CASES CITED. XXXIX Lnwes p. Porser Lawrence v. Balloo F. Uerney p. Englesby p. Fox r. Gaultney V. Iluut V. Jarvis V. Luhr V. Milwaukee 9. StrattoQ V. Towie p. Vernon V. Webster Paok 717 102 280,231 371 321 88, 128, 152, 2^6 293,2^ 687 62 672 638 loy 846 Lawrence Univ. v. Smith 678 Lazell p. Miller 191 Lazier v. Wt^stcott 265 Lea V. Lea 61, 729 Leach v. Buchanan 482, 492 Learned v. Bryant 667 Leary ». New 644 Leather Manuf. Bank r. Morgan 584, 685. 588, 696, 611, 612, 629, 632, 63.4. 645, 646, 650 Leavitt v. Putnam 605 V Wolcott 102 Le Clieveiier v. Lynch 31 1 Leclimere p. Fletcher 106, 106 Lee P. Clark 133, 872 9. Dolan 69 p. Gardiner 685 p. Hopkins 91 P.Lake 669,715 p. Monroe 657 p. Mound Station 668 p. Slate 180 p. Templeton 673 p. Tillotaon 689 p. Turner 888 p. West 112 Leeper p. Hersman 629 Legge p. Edmonds 181 Leggett p. Great Northern Ry. Co. 131 Lehman v. Bradley 147 p. Clark 64, 678, 719, 722 p. Warner 373, 403, 464 Leinicauffv. Munter 101, 135 Leiand v. Marsh 172 J^enimon p. Hartsook 620 Leonard o. Baker 60 p. Simpson 78, 131 p. Whitney 152 Lesher v. Sherwin 547 Lesterjette r. Ford 299 Leulz p. Wallace 160 Levering p. Shockey 479, OaS Levi p. New Orleans Ins. Assoc. 223 Levy p. Gray 603 p. Hale 644 Lewis p. Alexander 687 r. AUred 205 Lewis p. Board of Commissioners 76 p. Ciianipion 670 t*. Ijanpliere 661 p. Lewis 212 p. Meserve 344 p. Rogers 217 p. Webber 567 p. WiUis 509 Lexington H. Co. p. Elwell 6J3 Libbey p. Pierce 876, 605, 072 Lichienberger p. Graham ' 007 Light p. St. Louis Hy. Co. 684 Liiley p. Adams 673 Lincoln p. Tower 290, 296, 301 Lindell p. McLaughlin 622 Lindner p. Brock 649, 567 Lindsey p. Danville 94 p. Hawes 341 Linington v. Strong 59 Linney p. Wood 352 Lippmins p. McCranie 601 Lipscomb p. Postell 132 Litchfield p. Cud worth 232 p. Goodnow 101, 114, 223, 348 Lites p. Addison 574, 581 Lithgow p. Kavenagh 340, 449' Littlefleld p. Brown 679 p. Perry 446 Littleton v. Clayton *611, 614, 520 p. liichanlson 1«^ Livermore p. Aldrich 478 Liverpool Assoc, p. Fairhurst 604 Liverpool Bank p. Walker 108 Liverpool Credit Co. p. Hunter 256, 268 Liverpool Whf. Co. p. Prescott 618 Livington p. llastle 503 Lloid p. Maddox 229 Lloyd p. Barr 68, 101 p. Lloyd 424 Loan Association v. Topeka 693 Lobdell p. Baker 610 Lochte V. Gele 564, 565 L(x:ke p. White 408 I^ckett p. James 449 Lockliart p. Locke 25'i Lockyer r. Ferryman 188 Loeb p. Willis 66, 60, 61 Ivoftus V. Maw • 574 r^)gan Co. p. Lincoln 461 Logansport p. Humphrevs 72, 99 p. La Rose 66, 68, 627, 692 p. Ulil 666, 688 Lnmax r. Smyth 577 Loroerson r. HofTman 140 Tendon & Northern Ins. Co., In re 624 London & Northwestern R. Co. r. West 514, 63S London Ry. Co. p. Lindsay 301 Long p. Anderson 629 p. BuUard 683 p. Fox 71T J CASES CITED. Paob Long V. Wilkiiwoii 346 Longfellow v. Moore 661 Long loland H. Co. v. Conklin 407 Luomis V. Pingree 405 V. Pulver 77 Lorain v. Hall 860 Lord u. Lord 678 V. Wilcox 131 Lorentz v. Lorentz 688, 669 Loring v. Folger 140 V. Mansfield 76 V. Otis 370 V. Steineman 230, 282 Los Angeles v. Melius 57 Lot V. Thomas 359, 412 Lotiiian v. Henderson 46, 287, 241 liOthrop V. Foster 448 Loud V. Loud 245 Loudenback v. ColUns 59 Louis V. Brown 102 Louisiana Levee Co. v. State 114 Louisville R. Co. v. Fianagaa 467 Louks V. Kenniston 611, 620 Love V. Gibson 132 V. Law 511 V. Trueman 59 Lovejoy v. Murray 112, 127 Loveinan v. Taylor 552, 6b4 Low V. Bartlett 318, 319 V, Mussey 286 Lowell V. Daniels 339, 599, 600 Lowry v. Inman 137 V. Lumberman's Bank 188 Lucas V. Bank of Darien 302 V. Beebe 865 V. Brooks 511, 527 v.. Greenville Assoc. 466 i;. San Francisco 72 Luce v. Dexter 112 Luckenback i;. Anderson 52, 304, 807 Lucy V. Gray 875, 572 Lufkin V. Curtis 340, 449 Lumber Co. v. Buchtel 188 Lund o Seaman's Bank 548, 549 Lunsford v. Alexander 514 Lunt V, Holland 370 Luntz V. Greve 79 Lush, In re 603 Lyman v. Faris 125, 137 Lynch v. Swanton 100 Lyon V. North rup 132 V. Perin Manuf. Co. 58 V. Reed 699 V. Robbins 85 V. Stanford 119, 121 V. Travellers* Ins. Co. 664, 717 Lyons v. Munson 876, 469 M. Pagi McAbe V, Thompson 638 McAdams v. Hawes 629 McAfee v. Fisher 580,582 McAfferty v. Conover 715 McAleer v. Horsey 582 McAllister v. Brooks 138 McArthur v. Home Life Assoc. 684 McAuly ». West Vt. Ry. 672 McBee v. Fulton 116 McBeth V. Trabue 605 Mc Blair v. Gibbes 558 McBridge v. Greenwood 402 McBroom v. Lebanon 466 McCabe v. Raney 581 McCaffrey v. Carter 197 McCall V. Carpenter 277, 287 V. Coover 3J»7 V. Jones 53,87 V. Powell 639 McCalley v. Robinson 152, 704 V, Wilbum 77 McCance v. London & Northwest- ern Ry. Co. 688. 641 McCann v. Atherton 629 McCarthy v. r^avasclie 468, 687 t^. Mann 482 McClure r. Commonwealth 460, 562, 684 V. Englehardt 846 v. I^ewis 669 V. Livermore 6.38 r. Oxford 468 McConihe o. Fales 857 McConnel v. Kibbe 172 McConnell v. Bowdry 527. 629 McCoon V. Smith 600,605 McCormick t^. Baltimore 685 V. Barnum 621 V. Bauer H'l V. Penna. Cent. R. Co. 186. 720 i\ SuUivant 2CW, 206 McCoy V. McCoy 99, 203 McCramer v. Thompson 494 McCraw v. Old North Ins. Co. 668. 664 McCrea v. Purmort 3b3 , 476, 477 McCreary v. Parsons 457 McCreery v. Fuller 73 McCrory v. Parks 101 McCuUough V. Clark 79 r. Dashiell 365, 8r)6 V. Wilson 604 McCune v. McMichael 715 McCusker v. McEvey 432,441 McDaniel o. Hughes 314 McDonald v. Gregory 114 V. Lusk 3:4 t*. McDonald 555 V. Mobile Ins. Co. 100, 152 V. Muscatine Bank 494 McDonnell v. Alabama Ins. Co. 467 CASES CITED. xli McDowell V, Graham V. Langdon u. Peyton McEImoyle v, Cohen McKwen v. Jenks McFarlane v. Cushman McFeelj v. Scott McGee v. Frouty McGilvray v. Avery McGirr v. Sell MacGregor v, Rhodes Molntoali i;. Parker Mai'kintosh i\ Smith * Mclntire v. Yates McKay u. Kilburn McKee v. Monterey Co. McKelUr v. BoweU McKelway u. Armour Paob 712 61 212 68, 271. 278. 284.288 671 66 217. 219 662 108,811 672 488 849 166 611 126 646. 686 146 620 McKenzie v. British Linen Co. 684, 696. 6:^2 McKleroy r. Southern Bank 481, 491 McKnisht v. Dunlop 198 r. Pittsburgh 668 McLain v, Buliner 621, 670 McLaughlin v. Citizens' Bldg. Assoc. 464 r. Doane 66 r. McGee 60, 129 McLean v, Dow 666 r. Meek 140, 818 r. State 686 McLeery u. McLeery 889, 898, 448 McLendon v, Doclge 281 McMahon v. Merrick 114 McMa8tersiT.Ins.Co. 671,629,638,640 McMath c. Teel • 646 McMicken r. Cincinnati 68 V, Perin 668 McMorris o. Webb 600, 602 McMullin V, Glass 479 McNairy v. Nashville 68 McNamara v. Arthur 69 McNaraee v. Moorland 182 McNeil V. Hill 474 V. Tenth Natl. Bank 661 Macknet v. Mauknet 688 McNutt V. Trogden 189 McPherson v. Foster 467 McQueen's Appeal 719 McQueen v. McQueen 64 McRae c. Mattoon . 216, 808 Mc Reynolds v. Jones 6H4 McStva V. Matthews 661 Mc Williams r. Nisly 440 V. Ramsay 665 Maddison v. Alderson 674, 676 Madison Co. v. Paxton 611 Magc^e i;. Hallett 841 Maghee v. Collins 168 Magnus r. Sleeper 80 Pags Magoun v. New England Ins. Co. 47. 224, 226, 241, 264 Magrath v. Hardy 189 Magruder v. Ksmay 897 Mahurin v. Bickford 820 V. Harding 610 Maigley i;. Hauer 477 Mailhuuse v. Liloes 78 Major i;. Rice 621 Majors v. Cowell 130 Males V. Lowenstein 68 Maley v. Shattuck 247, 248 Malin v, Malin 687 Maliett V, Foxdroft 178 Malley v. Thalheimer 666 Ma Honey V. Horan 449 Maily V. Mally 168 Man V. Drexel 97, 166 Manhattan Ins. Co. v. Broughton 66 Manigault v. Deas 148 IJankin v. Chandler 234 Manny t;. Harris 88 Mansfield v. Hoagland 131 Mansur v. Haughey 677, 686 Manufacturers' Bank v. Hazard 631 Manufl Co. v. Elizabeth 866 17. Montgomery 466 Maple 17. Railroad Co. 121, 123 Maquoketa t;. Willey 683 Marble v, Keyes 194 Marco i;. Fond du Lac Co. 471, 473 Marcy v. Oswego 469 Marine Bank v, Fiske 697 Marine Ins. Co. v. Hodgson 202 Mariner v. Milwaukee & St Paul R. Co. 716 Marion Bank v. Dunkin 464; 466 Marion Road Co. v. McClure 617 Mark ham v. Middleton 167 V. O'Connor 695 Markland Co. v, Kimmel 684 Marlborough v. Sisson 194 Marqiiart v. Bradford 686 Marquette R. Co. v. Marcott 720 Marqueze v. Fernhadez 638 Marnot v. Marriot 212 Marriott v. Hampton 77, 91, 181, 191 Marsh v. Harris Manuf. Co. 663 V. Pier 84 t). Thompson 867, 645 Marshall t\ Fisher 118 V. Pierce 714 t'. Shafter 129 Mars ton v. Hobbs 889 V. Swett 663 M^rtel V. East St. Ijouw 461 Martin r. Jersey City Ins. Co. 661 V. Kennedy 110 V. Nichols 269, 260, 308 V. Talley 146 V. Walker 100 xlii CASES CITED. Martin v. Webb u. Zelierbach Marvin r. Dutcher Mary, The Mason v. Anthony V. EUired V. Finch 600 669 162 46, 47, 262 66b 107 683 V. Harper's Ferry Bridge Co. 609, 672, 674, 67tt r. Mnson 849, 672 V. Messenger 210 V. Paiterson 78 V. Philbrnok 694 Masfer v. Strickland 146 Mfttisey V. Bldg. Assoc. 404 Massie v. Sebastian 340 MHSterson t^. Matthews 63 Matlieney t*. Mason 649 Mather v. Maidstone 490 Maihes v. Cover 143 Matthews v. Houshton 188 V. Matthews 70 Matthey v. Wiseman 140 Mattill V. Baas 449 Mattison v. Aussmius 868 Matlock u. Lee 460 Matioon v. Clapp 271, 284 V. Young 672 Mnttox t;. Hightshne 117 Maury v. Coleman 681 Maxwell i7. Bay City Bridge Co. 678, 684, 688, 666, 67 1 276 66, 84, 166, 188, 191 670 i;. Stewart May, In re May V. Gates V. Marks Mayenborg v. Haynes Mayer v. Krhardt V. Ranipey Mayfield v. Wadsley Mayo t'. Ah Loy V. Cart Wright V. I^ggett V. Wood Mayor v. Lord V. Pyne Mays r. Stoneum Mead r. Bunn V. Figh V. Keeler 99 697, 680. 660 6t5l 627, 699 198 20(J 694 661 143 201 198 63 627 ml 687 79 r. Mitchell Meadows t*. Duchess of Kingston 209, 212, 219 Mends v. Merchants' Bank of Al- bany 600, 604 Mrans V. Hicks 146 Mec5 59 476, 479 508,509 678 718 . 578 7.') 180, 181 5r)5 033 247, 264 718 607 561 362 245 606 Paoi Montgomery v. Keppel 631 V. Montgomery Piank Road Co. 466 V. Wasem 206, 665 Mookerjee v. Deb 607 Moore u. Beasley 510 p. Boyd 697 p. By rum 446 p. Frazer 712 p. Metropolitan Bank 661,562 p. Spiegel 61, 629 V. loppan 204 p. Willis 428 Moores p. Citizens' Bank 499 Moors p. Albro 578 Moran p. Miami County 469 Morgan, Ex parte • 101 Morgan p. Bliss 55 p. Burr 87. 99. 152 p. Chester 112, 122 p. Elam 678 p. Lamed 642 p. Moore 870 p. Muldoon 86, 131, 132, 133 p. Railroad Co. 5S.J, 537, 636 p. Rowlands 168 p. Spangler 597, 0.50 r. Vaughan 719 Morin p. St Paul By. Co. 232 Morrell p. Morgan 63,57 Morris v. Bethell 491 r. HaU 684 p. Rexford 073 p. Shannon 501 p. State 460, 686, 087 V. Webber 229 Morris Co. p. Hincbman 137 Morris R. Co. p. Railroad Co. 467 Morrison v. Bassett 509,511 p. Bowman 674 p. New Bedford Inst, for Sav- ings 140 p. Wilson 100 Morriss v. Garland 718 Morse p. Bvam 571 r. Curtis 441 p. Dearborn 610, 611 p. Elms 96, 132, 160 p. Goddard 520, 522 p. Goold 63 p. Lowell 86, 600 p. Pre6l)y 203, 204, 205 p. Tappan 116 Morton p. Uodgdon 637 p. Noble 449 p. Sweetser 56 V. Woods 862, 863, 539, 540 Mosely p. Hunter 409 Moses p. McClain 349 p. McFcrlan 101 p. St. Louis Dock Co. 698 p. Sanford 666 a liv GASES CITED, Moshier v. Froit Moss V. McCuUough 17. Oakley V. Sallimore Motley V. Harris Mott V. Consumers' Ice Co. Paai 678 137, 147 137 648,544 84 719 Motz 1-. Detroit 465, 689, 692 Moulton V. Reid 130 V. Trask 194 Moultrie v. Savings Bank 469 Mount Morris Square, In re 68 Mountnoy v. Collier 638 Mowatt V. Castle Steel Co. 148, 453, 597 Mowrey v. Walsh 501 Moyer v. Lobengeir 140 Mueller v. Henning 99, 100 Muhlenberg v. Druckenmiller 377 Mull V. Orme 67 MuUer v. Pondir 629 Mulligan v. Smith 86, 204 Mum ford v. Stocker 103 Muncey v. Joest 206 Munford v. Overseers 146 V, Pearce 857 Munson v. Munson 286 Murdook v. Chapman 870 r. Gaskill 58 Murphy v. Bamett 442 i;. People's Ins. Co. 638 Murray v. Blatchford 599 V. Jones 682, 685 Murrell r. Smith 152 Muse V. Dantzler 581 Mussey v. Eagle Bank 500 Mutual Ben. Ins. Co. v, Elizaoeth 469 Mutual Ins. Co. v. Norris 611, 629, 640 Myers v. Beeman 50 V. Cronk 697 V. O'Hanlon 213 V. Uhrich 140 N. Naglee v. IngersoU 379 Napton V. Leatun 296 Nashua Ins. Co. v, Moore 464 Nashville liy. Co. o. United States 78 Nason v. Allen 344 Nass V. Vanswearingen 587 Nathans v, Hope 85, 194 National Bank v. Bangs 481, 490, 491. 402 p. Case 568 National Ins. Co. v. Bowman 464 Nations r. Johnson 286 Neale u. Jeter lOi Neodham v. Bremner 2*28 Neff V. Bates 6-^6 Neiil t;. Devonshire 80, 114, 284 Neliis v. Lathrop 619 Paci Nelson v. Bojmton 280 V, Cowing 663 V. Oldfield 245 V. Woodrufif 475 Nemetty v. Naylor 78,'l27 Neusbaum v. Keim 78 Nevett V. Berry 874 Neville v, Hancock 109, 111 New Bedford v. Hingham 664, 665 Newbery ». Fox 461 Newbigging v. Adam 616 Newcomb v. Presbrey 407 Newell V. Holton 480, 557 V. Nixon 664 New England Ins. Co. v. Dunham 223 New Haven v. Fairhaven & W. B. Co. 585 New Haven R Co. v. Chatham 461 Newington v. Levy 85, 188, 202 New Jersey Franklinite Co. v. Ames 136 Newlands v. National Employers' Accident Assoc. 566 Newman v. Waterman 280 Newnhatn v. Stevenson 688 New Orleans K. Co. v. Jones 671 Newport Bridge Co. v. Douglass 340 New Providence v. Haisey 469 Newton v. Egmont 187 V. Marshall 831 V. Walters 139 New York v. Sonnebom 552, 684 New York Ins. Co. v. Clemmitt 72. 99 New York Rubber Co. v. Rothery 586, 595, 596 New Zealand Banking Corporation, In re 623 Nichol V. Alexander 436 i;. Mason 818 Nicholas v. Austin 586 Nichols V. James 564 V. Pool 561 Nicholson V. Caress 340, 402 Nickells v. Atherstone 526 Nickels v. Hancock H9 Nicodemus v. East Saginaw 692 Nieto V. Carpenter 841 Nims V. Sherman 606, 511, 718 Nispel V. Laparle 57 Nitchei?. Earle 717 Niven v. Belknap 686, 606, 666 Nix V. Collins 713 Nixon V. Halley 608 Noble V. Blount 699 V. Chrisman 620 V. Cope 878 V. Gold 268 Noe V. Splivalo 832, 674 Noel V. Bewley 440 V. Kinney 599, 603 Noell r. Wells 210, 229 Noonan o. Ilslej 435 CASES CITED. xlv Norridgewock v. Bladiaon Norris v. Hall V. Norton V. State p. Wait North V, Henneberry o. Mudgre North Bank v. Brown Northern Bank v. Porter Northern Packet Co. v. Piatt Northwestern Packet Co. v. Shaw Norton v. Coons i;. Doherty V. Huxley p. Norton Norwood p. Kirby Noton V. Brooks Nougu^ V. Clapp Nourse v. Nourse Noarion v. Freeman Paoi 664 188 853 873 605 852 78 318 376, 467, 468, 469 638 NoTelli V. Rossi 467 673 83 83 859, 688 164, 511, 514 558 219, 304 349 288, 262, 285, 309,706 262 O. Oakland Paving Co. v. Bier 460, 468 O'Beirne v. Lloyd 194 O'Brien ». Wetherell 545, 546 Obicini v. Bligh 262, 309 Ocean Bank v. Olcott 802 Ocean Ins. Co. v. Francis 48, 241 Ochsenbein v. Papelier 254, 807 O'Connell r. McNaroara 102 O'Connor v. Vame? 186, 187 Oddie p. National Bank 492, 493 O'Dell p. Little 603 O'Donnell u. Clinton 629 O'Dougherty v. Remington Paper Co. 194 Offley p. Ormes 507 Ogden V. Rowley 722 Ogdensbargh R. Co. p. Vermont R. Co. 719 Ogle p. Atkinson 541, 550 p. Smith 642 Oglesby Coal Co. v. Pasco 603 O'Halloran p. Fit:q|rerald 545 Ohning p. Eransville 146 Olcott p. Little 108 Oldham v. Ledbetter 140 O' Linda p. Lothrop 870 Oliver p. Holt 194 Olney p. Sawyer 846 O'Mulcahey p. HoUey 584 O'Neal p. Brown 194 Onurio p. Hill 876, 469 Oregonian Ry. Co. p. Oregon Ry. Co. 459, 464, 465, 466, 476, 615, 685, 707 Organ p. Stewart Orleans p. Piatt Ormes p. Dauchy Ormond p. Moye Osborn v. Elder Osgood p. Abbott p. Nichols Osterhout p. Shoemaker Otis p. McMillan p. Sill Otterson v. Middleton Outram p. More wood Over p. Schiffling Overseers p. Overseers Overton p. Banister p. Harvey Owen p. Robbins p. Slatter Ozborough p. Borsser Paqi 639 115, 376, 469 721 50 566 836 548 345, 858, 442 513, 533 687 215 98,729 564 511 606 726 846 588 68 P. Packet Co. p. Sickles 88, 87 Padbury p. Clark 676 Padfield p. Pierce 686 Page p. Butler 374 p. Kinsman 510, 511 p. Smith 360 Page Co. p. B. & M. R. Co. 689 Paige p. Sherman 478 Painter p. Hogue 100 Palmer p. Bowker 538 p. Kkins 507 p. Meiners 638 p. Smith 685 p. Temple 725 p. Williams 578 Pancoast p. Travelers' Ins. Co. 466, 544 Pardon p. Dwire 203 Pargeter p. Harris 362, 863, 539, 540 Parham p. Randolph 627 Parish p. Parish 206 barker p. Banks 597 p. Barker 598 p. Bennett 370 p. Crittenden 608 p. Judges 202 p. Manning 842 p. Moore 131, 135, 629 p. Smith 370 p. Thompson 88 Parkes p. Clift 153 Parkhurst p. Burdell 102 p. Van Courtland 587 Parkinson p. Sherman 371 Pamell p. Hahn 127, 153, 154 Partridge p. Bere 544 p. Kingman 564 p. Messer 852 Pasley p. Freeman 557, 578, 614, 629 xlvi CASES CITED. Paqb Patch ». Ward 214, au6 Pule V Harper 04:2 B. Turner 614 Patrick r. Jones 689 Patterson v. Baumer 692 p. FrHser 117 V. Hanttel 627 V. Lawrence 339, 608 V. Head 684 Paul f. Squibb 617 V. Wit man 134 Pausch V. Guerrard 677 Pawling V. Bird 264, 267 Payment v. Church 611 Payne v. Burnham 668, 652 V. O'Shea 214 V. Payne 166 Peake o. 'I'itonias 629 Pear(.*e v. 0>ney 202, 273, 804, 305 PeHrl V. Hiirris 68 Pease t\ Whitten 68 Pea&lee v. Hobbins 408 Peck V. Vanilenberg 471 V. Wood bridge 217 Peebles v, PAte 114 Peek V. Gurney 679, 606, 660, 661 Peery v. HhU 670 Pells V. Webquish 849 Pelletreau v, Jackson 862 Pence v, Arbuckle 661, 697, 629, 631 Pendleton t\ Dalton 69, 202, 722 V. Dyett 621 Pendley r. Madison 846 Penninfcton v. Gibson 286 Pennoyer v. Nefif 49, 296 Penobscot R. Co. v. Weeks 203, 206 Penrose v. Curren 602 r. Griffith 841, 897 People V. Bilker 244 r. Bank of North America 696, 632, 640 r. Brown 841, 669 r. Dawell 244 t>, Goodwin 691 V. Hflli 130 r. Johnson 162, 164 V, Judges of Monroe Co. 182 V. Murray 130, 689 r. New York 694 V. Phoenix Bank 214 V. Plumpke 620 V. Heeder 473 ». Sherman 290 V. Schuyler 69 V. Sterling Manuf. Co. 687 V. Stockton R. Co. 719, 720 V. Townsend 214 V. Waite 687 V. White 498 People's Bank v. Hodgdon 79 Peoria B. Co. v. Thompson 467 Pa«i Pepper v. Zahnsinger 664 Perdue v. Brooks 460 Perkins v. Conant 662 V. Gay 619, 620, 621 V. Hart 198 V. Jones 722 V. Moore 67 c. Parker 66.61,84,86 9. Walker 88, , 160, 164, 708 Perrine v. Serrell 184 Perry v. Cheboygan 698 V. Dow 696 V. Harrington 108 V. Meddowcroft 213, 219, 227, '229 V. Williams 567 Perryman v. Greenville 646, 648, 6b6, 687,690 Pershing v. Canfield 647 Pervear v. Kimball 121, 122 Peters v. Bowman 357 V. Sanford 107 V. Warren Ins. Co. 240 Petersine u. Thomas 153 Petrie v. Nuttall 114, 116 Petring v. Chrisler 710 Pettis V. Johnson 117 Peyton v. Stith 684 Pfiffner v. Krapfel 62, 807 Pheian t^. Moss 494 ». Tyler 79 Phelps V. Harris 63,68 V. Illinois Cent R. Co. 672 V. White 610 Philadelphia v. Matchett 662 Philadelphia U. Co. v. Howard 722 Philbrick v. Shaw 832 Philips V. Bury 229 Phiilipps V. Van Shack 699 Phillips V. Bcrick 88, 194, 702 V. Gallant 629 V. Godfrey 282 V. Hunter 268, 314 V. Rogers 684 V. Thum 486, 489, 490 P.Ward 109 Phillpotts V. Blasdell 129 Phinney v. Johnson 627 Phcenix Ins< Co. v. Doster 661, 664 PhiBnix Warehouse Co. v. Badger 464 Phosphate Sewage Co. v. Malie«on 202 Pickard t\ Sears 466, 468. 668, 662, 669, 584, 686, 606, 617, 630, 681, 682, 633, 634,640,648,666,714 Pickering v. Busk 661 r. Cape Town Ry. Co. 70, 71 Pickett 17. Merchants* Bank 684 t'. Pipkin 48, 160 Pico ». Webster 127 Pierce v. Andrews 629, 687 V. Carleton 140 0. Chicago R. Co. 141 CASfS CITED. xlvii Pike V. Fay V. Galvio V. Potter 9. StaliingB Piiii r. Curell Pinckard o. Milmine Pinney o. Barnes Pitcher r. Dove Pitman v, Albany Pitt c Berkshire Ins. Co. 0. Chappelow Pitta pur V. Garu Pittsburg 17. Danforth bin 405 101 684 86, 114, 2^4 866 1U4 618, 620, 620 68,238 471 496, 497 45, 08, 227 670 Piii«burKli Ry. Co. i;. Swinney 719, 723 Placer Co. v, Astin 5(') Planche o. Colbum 194 Plant 0. Voepelin 581 Planters' Bnnk v. Merritt 686 Planters' Ins. Co. v. Selma Bank 582, 629 Piatt V. Squire 832, 861, 710 Platter v, Elkhart 598 Plets i;. Johnson 486 Plott 17. Chicago R. Co. 664 Plumb 17. Cattaraugoa Mat. Ins. Co. 709 Plume V. Beale 245 V. Hfiward Inst. 203, 2.30 Plumer v. Lord 575, 629 Piummer v. Farmers' Bank 581 17. Moid 627 V. Wuodbume 286, 290, 309, 318, 706, 736 Pole P. Somers 677 PoUard v. Cocke 346 V. Han rick 99 t7. Railroad Co. 128 Pond 17. Makepeace 149, 818 Pool 17. Lewis 716 Poole 17. Dilworth 99 V. Whitt 522 Poor 17. Robinson 838, 339 Poorman v. Crane 294 17. Mitchell 706 Pope V. Bank of Albion 604 Porter 17. In graham 111 V. I^zear 449 V. Porter • 206 V Purdy 208 V. Robinson 117 17. Wagner 59, 162, 163 Potter r. Brown 686 V. Parsons 806 potts V. Coleman 547 Powell's Appeal 889, 599, 603 Powell 17. Clelland 68 V. Monson & M. Co. 340, 449 17. Rodgers 638 Powers V. Harris 661 17. Patten 402 Pratt r. Cunliff 140 Paoi Pratt V. Farper 638 Pray v. Hegeman 160, 152, 158, 164, 164 Preble v. Baldwin 478 17. Conger 678 Prentice t\ 8tefan 671 Prescott V. Hull 316 Presstman t7. Silljacks 617 Preston v. Mann 581, 610, 612 Pre^twick u. Marshall 4W6 Prevot V. Lawrence 627 Price V. Breckenridge 718 r. Dewhurst 254 r. Jennings 606 17. Neal 481,491,492,611 i;. Pollock 334 V. Thompson 636 Prichard i7. Houlditch 509 Prickete r. Sibert 617 Priestly V. Fernie 121, 124 Prince v. Brunette 496 Princeton v. Templeton 688 Pritchard t7. Hitchcock 145 Pritchet t7. Clark 264 Probate Court v, 8t. Clair 6.38 Probstfield v, Czizek 552 Proctor's Case 63 Proctor 17. Bennis 587, 596, 610 V, Cole 68 17. Putnam Machine Co. 619 Proskauer t7. People's Sav. Bank 698 Prout V. Wiley 683 Prouty 17. Mather 404 Providence v. Adams 162 Providence Ins. Co. r. Fennell 471 Prudam v. Philips 210, 229 Pruitt 17. Holly 87, 88, 702 Puckett 17. Pope 292 Pulaski V. 8ute 841, 598 Pulliam V. Bnrllngharoe 648, 549 Pullman r. Upton 463, 470 Purdy V. Coar 858 17. Doyle 104 Pursly 17. Hays 686 Putnam v. Clark 99 17. Tyler 617 Q. Quackenbnsh v. Ehle 66 Queen v. Gamble 717 t7. Hutchins 61 Quigley r. Mexico Bank 114 Quinlan v. Myers 669 Quirk r. Thomas 661 R. Rabitte v. Orr 661, 662, 564, 678 Radciiff 17. United States Ins. Co. 48, 241 xlviii CASES CITED. Radwaj v. Graham Railroad Co. v. Dubois V. National Bank V. Schulte V. Schurmeir Railway Co. v. Daniel V. Graham V. McCarthy V. liameey Rainbolt v, Eddy Raley v. Koas V. Williams Ralston v. Lahee Paok 718 587 114 160 841 663 563 467, 717 203, 204, 718 4^ 646 615 118 Ramsden t;. Dyson 587, 610, 620. 665, 666, 671 Ramsey v. Henderson 619 Ranclyffe v. Parkyns 676 Randall v. Lower 359, 395, 412, 413 Randolph v. Keller 286 Rangeley v. Spring 600, 715 Rangely v. Webster 274^ 812 Rankin v. Barnes 284 V. Godard 264 i;. Warner 831 Rannels v. Gerner 600, 603 Ransom v. Stanberry 698, 699 Rape V. Heaton 296 Rapelee v. Stewart 685 Rapelye v. Prince 133 Rathbone v. Boyd 569 r. Hooney 131 Ravee v. Farmer 69, 166, 190 Rawlirxson v. Stone 496 Ray V. Gardner 357 V. Indianapolis Ins. Co. 466 V. McMurtry 639 Raymond v. Crown Mills 124 V. Holdcn 340, 449 V. Richmond 114, 150 Raynor v. Timerson 620 Read v. Hall 603 V. Sutton 88 V. Walker 712 Reagan v. Hadley 639 Reciprocity Bank, In re 563 Rector v. Board of Improvement 584, 594, 596, G88 V. Waugh 409 Redd v, Muscogee R. Co. 561 Redgrave v. Hurd 255, 610, 617, 627 Redington v. Woods 494 Redman v. Graham 561 Redwootl V. Tower 865 Redwood Cemetery Assoc, v. Bandy 635, 668 Reed r. Douglas 154 V. Farr 620 r. Girty 275 V. Jackson 36 V. Lyon 525, 527 r. McCourt 382, 620 Pass Reed v. Peterson 686, 688 Rees V. Chicago 688 ». Lloyd 397 Reese v. Smith 435 Reese Silver Mining Co. r. Smith 810 Reeves v. Brooks 450 9. Howes 340 Regina t*. Ambergate Ry. Co. 697 V. Blakemore 144 V. Buckinghamshire 728 V. Liverpool 728 V. Salop 723 0. Shropshire Union Co. 661 Reichert r. Voss 684 Reid 17. Darby 262 V. Holmes 119 V. State 840, 598 Relgard v. McNeil 687 Reimers v. Druce 268 Reis v. Lawrence 603, 604 Remington Paper Co. v. O'Dough- erly . 702 Remmett v. Lawrence 643 Rem sen v. Graves 498 Renaud v. Abbot 275, 276 • Rennick v. Bank of Chillicothe 685 Rennie t;. Robinson 514 V. Young 665 Renovo v. Half Moon 232 Requa v. Holmes 684 Ressequie r. Byers 76> 178, 182 Rex V. Bentley 232 V. Bradenham 233 V. Cirencester 232 V. Grundon 64, 229 v.- Rhodes 229 V. St. Pancras 91 V. Scammonden 478 V. Vincent 210, 229 Reynolds v. Blackburn 721 Ricard v. Sanderson 371 Ricardo v. Garcino > 262 Hice V. Barrett 664 V. Bunce 617 V. Dewey 694 17. Rice 473, 661 t;. Rock Island R. Co. 687 Rich 17. Coe 121, 122 17. Rich 162 Richards v. Barlow 242, 262, 275 V. Johnston 609 Richardson r. Boston 172, 706 17. Hickman 140 17. Stewart 129 17. Wyman 449 Rich man ». Baldwin 640 Riddle 17. Hill 460 V. Mnrphy 345, 846 Rider v. Alexander 287 Ridgefield v. Reynolds 692 Riggan v. Green 498 CASES aTED. xlix Riggs v. Punell Bight V. Bucknell 966, d77, Riker v. Hooper Rikhoff V. Brown's Sewing chine Co. Riley v. Murraj Ripley v. ^tna Ins. Co. V. Billiners Ritchey v. Withers Rivard v. Gardner Riverside Co. v. Townshend Roach r. Brannon V, Gnrvan i;. White Robb r. Shephard Robbins v. Blodgett V. Bridgewater V. Magee V. Potter Roberts v. Cooper p. Darls^ p. Read* p. Rice p. Wentwopth Robertson v. Pickrdl 846, p. Roberts p. Smith p. Stmth Robeson p. Carpenter Robins p. Crutchley 210, Robinson's Case Robinson p. Bates p. Douthit p. Green p. Howard p. Jones p. Pebworth p« Presoott p. Snyder p. Ward p. Yarrow Robson V. Eaton Roby V. Chicago Rochell V. Benson Rock p. Leighton Rockwell p. Brown Rodermund p. Clark 678, 679, Roe p. Jerome Rogers p. Beauchamp p. Blackwell p. Burlington p. Barns p. Cromack p. Grannis p. Gwinn p. Haines p. Higgins p. Kimsey p. Marsh p. Odell p. Pitcher 523, Pasi eo 807,424 84 Ma- 462 281 66% 683 678 229 644 163, 182 678 229,244 448,687 629 638 219 6»9 627 71 639 171 166 642 346,367 140 107 261,809 139 227,229 131 449 433,446 198 67 46,260 684,686 320,846 198 294 486,488 292 461,684 867 78, 131 172 686,718 683 86,38 497 469 281 642 148, 329 894 129 600 80 638 813 680,631 Pa« Rogers p. RatdifE 164 p. Rogers 277, 281 u. Wood 61 Romford Canal Co., In re 366,, 468, 470 Root V. Crock 397, 409 p. French 661 p. Lowndes 172, 174 Rose p. Himely 261 p. Hurley 681 Rosebrough p. Ansley 668 Rosenthal r. Mayhngh 449, 603, 629 p. Renick 318,319 Ross p. Dysart 622 p. New England Ins. Co. 101 p. Thompson 687 Rossire p. Boston 689 Roswald P. Hobble 476, 649, 667 Round tree p. Turner 72 Rountree p. Denson 410 Rousillon V. Rousillon 49, 62, 204, 238, 266, 290, 297, :30l 200 76,77 68 476, 476 206 675 67,687 492 168 141 897 661 602 470, 698 608 388, 389, 403, 432 612 610 671, 709 131, 132 69, 61, 163 238 678 229 66 636 620 148 118 608 607, 617 Routledge v. Hislop Rowe p. Smith p. Williams Rowley v. Bigelow p. Howard p. Towsley Rubber Co. p. Goodyear Rudd V. Matthews Ruegger p. Indianapolis R. Co. Ruff V. Ruff Ruffln P. Johnson Rumball p. Metropolitan Bank Rumfeit p. Clemens Rush Co. p. State Rusk p. Fenton Russ V. Alpaugh Russell p. Erwin p. Fabyan p. Kiemey p. Mallon p. Place p. Smyth Rust p. Bennett Ruth p. Oberbrunner Rutherford p. Davis p. Taylor p. Tracy Rutland p. Rutland Butter p. Puckhoyer Ryan p. Maxey Ryder v. Mansell S. Sacket p. Loomis Sage p. McLaughlin Sahler p. Signer Sainsbury p. Jones St John p. Palmer 76 698 642 614 622 1 CASES CITED. Paos St John V. Qaitzow 617 V. Roberts 375, 605, 672 St. Joseph Maunf . Co. v. Daggett &^H, 640 St. Louis V. St. Louis Gas Co. 627 V. Shields 464 St. Louis Gas Co. i;. St. Louis 466 St. Louis K. Co. V. BelleTille 836, 470, 608 r. Lamed 617 St. I»ui8 Stock Yards v. Wiggins Ferry Co. 666 St. l*aiil K. Co. i;. First Div. St. Paul & P. R. Co. 341 BaUm i\ Eastern R. R. 48, 114 Saiisburj' Sav. Soc. v. Cutting 483 Sailer d. Kid ley 866 Snltus v. Everett 661 San Antonio v. Mehaffy 467, 46» Sanborn v. Fellows 219 Sanders v, Robertson 697 Sanderson u. CoUman 497, 699 Sands r. Davis 846, 858 Sanford o. Cloud 647 V. Sanford 808, 403, 682 Sanger i*. Wood 679 Saratoga Bank v. Pniyn 839, 603 Sarchet i;. Sloop Dayis 284 Sargeant v. Andrews 188 Sargent v. Fitzpatrick 187 V. Flaid 718 Sannders v. Merryweather 863, 639 Savage's Case 138 SavH>!e f\ Bumham 678 V. Dowd 671 V. Russell 464, 717 Saveland v Green 181 Sawyer v. Maine Insurance Co. 240, 261 ». Woodbury 61, 168, 183, 187 Sax ton t;. Dmige 663 Sayles r. Briggs 88 V. Smith 547 Scanlnn v. O'Brien 667 Scates V, King 142, 143, 347, 505, 627 Scliaeffer c. Bonham 467. 468 Scliaidt V. Blaul 586, 6f{6 Stlienck V. Stumpf 600 Scliertz V. People 53 Schibsby v. Westenholz 49, 52, 204. 288, 289, 290, 297, 301 Schmaltz v. Avery 644 Schmidt v. Mutual Ins. Co. 66.3 Schnell v. Chicago 600, 601, 605 Scholey v, Rew 673, 678 School Dist i;. Atherton 684 V. Stocker 61, 152, 164, 252 ». Stone 865, 366, 376, 468 Schraeder Mining Co. v. Packer 619, 620 Schroeder v. Lahrman 116, 186 PlOB Schuler u. Israel 103 Schwallback v. Chicago R. Co. 346 Schwartz v, Saunders 600, 603 Sch winger v. Uickok 297 t;. Raymond 176 Scolly V. Butler 720 Scotland v. Hill 100 Scott V, Avery 68 V. Board of Comm'rs 692 i;. Liverpool 68 v. Pilkington 260, 261, 262, 287, 312 V. Shearnran 224 V. Strawn 669 V. Ware 36, 147 Scovili 0. Thayer 470 Scranton v. Stewart 699 Scrimshire v. Scrimshire 244 Seavev v. Kirkpatrick 357, 546 Sebreli o. Uuglies 357 Sebright v. Moore 661 Secombe v. Railroad Co. 206 Second Nat'i Bank v. Walbridge 476^ 615, 622 Secor V. Stnrgis 85, 198 Secrist v. Green 160, 207 V. Zimmerman 78 Security Bank v. Nat'l Bank 598 Seddon v. Tutop 167, 194, 196, 703 Seeman v. Springate 600 Segee v. Thomas 207, 290 Seinpic V. Bank 465 Seneca r. Allen 548, 684 Sergeant v. Ewing 100, 147 Serrao v. Noel 158, 154, 169, 171 Sessions v. Johnson 107, 112 V, Rice 629 V. Stevens 188 Seton 17. Lafone 457, 494, 571, 615, 656,658 Severity o. Kddy 134 Sewall 0. Hebert 693 V. Sewall 244, 245 Sewell's Case 628 Seymor's Case 428 Seymour v. Page 578, 582 Sexton V. Chicago 598 Shamlefifer v. Peerless Mill Co. 599 Shane v. Moberly 686 Share v. Becker 701 Sharp, In re 469, 691, 692 Sharp V. Findley 118 V. Taylor 663 Sharpe v San Paulo Ry. Co. 68 Shaver v. Shell Hd Shaw V. Beel>e 444, 716 r. Gould 244 t'. Lindsey 129 I*. Shaw 678 Shawhan r. Loffer 206, 290 Shay r. McNamara 136, 143, 348 Sheehan t;. Fitchburg 688 CASES aTED. li Pa«b Sheehy v liandeviUe 104, 106, 107 Sheen v. Stotheit 370, (M$9 ShefTey v. Gardiner 877 Sheffield v. Collier 666 V. Lonilon Jciint Stock Bank 666 Shelbury r. Scotsford 651 Sheldon v. Atlantic Ins. Co. 471 V. Kibl>e 11*2 r. Stryker 73 V. Wriglit 206, 207 Sheldon Bat Ca v. Eichmeyer Hut Co. 457 Shelley v. Wright 366, 869 Sheiton v. Auitman 562 V. Carrol 532 9. Tiffin 200, 293. 296 Shephani r. Little 476, 477 Shepiierd v. May 697, 652 Sheridan v. Barrett 620 V. The New Quay Co. 551 Sherien i;. Whelen 349 Sherman o, Christy 73 V. McKeon 684, 718 V. Parish 683 V. Simons 469 Sherrard i?. Nevios 209 Sherrod v, Langdon 564 Sherwood v. Alvis 463, 464 17. Vandenburgh 344 Shields v. Schifl 53 V. Smith 677 ShtUock P. Gilbert 627 Shinn v. Young 152, 164 Siiipley 0. Fox 557, 6*26, 6'27 Shiriand v. First National Bank 76/77 Shirreff v. Wilks 564 Shivers v. Simmons 605 Shoemaker v, Atkins 187 Shorman v. Eakin 849, 459, 506, 546 Showers v. Robinson 713 Shruyer v. Richmond 378 Shttltz V. Elliott 527, 530 Shttinaker v. Johnson 408, 600 Shomway v. Siillman 270, 293, 302 Shuttlesworth v, Hughey 100 Sickels V. Patterson 198 Sidensparker 17. Sidensparker 151 SiKerson v. Mathews 672 Silloway V. Brown 384 Silver Uke Bank v. Harding 822, 3'23 Simers i*. Saltus 522 Stmm 17. Anglo-American Tel. Co. 642 Sim lions v. Camp 561, 580 V. McKay 204 Simons V. De Bare 205 Simonton t;. Liverpool Ins. Co. 574 Simplot <7. Dubuque 688 Simpson v, Fogo 223, 248, 255, 262, 268 9. Moore 581, 611, 612 Sims 9. Chattanooga 669 V, £verhardt 605 Simson v. Hart Sinclair v. Murphy V. Sinclair Singleton v. Whiteside Sinnett v. Moles Smtzenick i*. Lucas Sizer v. Many Skaife i7. Jackson Skinner v. Grace Church Slnde's Case Slaughter v, Genson Slee V. Bloom Paob 63 548 244 622 583 88 72 471 693 200 582 137, 146 Slim V. Croucher 667, 612, 618, Kl5 Sloan's Appeal 312 Sloan V. Holcomb 678 Slocum (7. Mayberry 226 Slocumb V. Chicago R. Co. 587 Small {7. Reeves 357 Smelser v. Wayne Turnpike Co. 466 Smelting Co. v, Kemp 67 Smiley t\ Fries 896 Smith 17. Armstrong 603 17. Auld 58 17. Baker 409, 440 17. Brady 686 V, Brunswick 158 V. Busby 647 V. Chadwick 682 V, Connell 412 r. Crompton 132 17. Cropper 554, '638 17. De Russy 395 17. Elliott 172, 198, 705 r. Fairfield 60 17. Fenner 245 17. Fowler 671, 719 V, Graham 834, 372 V. Haire 721 17. Hall 716 17. Hamilton 622 17. Hitchcock 431 u. Hughes 629 r. Hutchinson 662. 587 17. Jones 194, 197 17. Keen 216 17. Kemochan 90 17. Knickerbocker Ins. Co. 681 17. Kremer 627 17. Lock 370 17. Lucas 676 17. McCluskey 191 17. McNamara 620 17. Marsack 406, 739 17. Mercer 490, 498 V. Morgan 181 V. Mundy 713 17. Munroe 681 • t*. Neal 61 17.* Nicolls 290, 802, 808, 314 17. Palmer 177, 185 17. Penny 387 lii CASES CITED. Smith V, Rathbun V. Scott V. Slieeley V. Shepard V. Smith Pa«i 717 510 621 163, 216, 227, 228, 246, 274, 682, 688 404, 406 664 100 76,77 189 241, 396, 407, 408 318 621 263 708 444 108 73 382 77 68 331 191 821 716 V. Strong V. SuttOD V. Way V. Weeks V. Whiting V. Williams Stiape i;. Norgate Sneed v. Osborn Sn«ll V. Faussatt Snider v. Croy Snodgrass v. Rickettt Snook V. Fries Snow V. Howard t;. Moses V. Prescott V. Walker Snowden v. Grice Sn^wdon v. Davis Snyder w. Wise Society for Manaf . v. Lehigh Val- ley R. Co. Society for Prop, of Gospel v. Paw> let 346, 368 Soc. for Savings v. New London 461 Solberg v. Decorah 669 Solomon v. Bushnell 476, 622 Somes V, Skinner 429, 430, 432 So. Ala. R. Co. V. Henlein 89, 194 Southard v. Perry 086 V. Sutton 677 Southeastern Ry. Co. v. Warton 362, 380.382 Southerland v. Stout 388 Southern Ins. Co. v. Booker 471 South Ottawa r. Perkins 101, 466, 467, 689 Soward v, Johnston Spalding i;. Wathen Sparhawk v. Wills Sparrow v. Kingman Spears v. Walker Speer v. James V. Matthews Spencer v. Carr V. Spencer V. Vigneaux 9. Williams Spiller V. Scribner Sponenbarger v. Lemert 673 119 60 339, 844, 856 716 147 562 615 246 217 149 716 374, 667 Spooner v. Dnvis 178 Sprigg V. Bank of Mt. Pleasant 694 Spring V. Hewston 622 Springport v. Teutonia Bank 114 Springstein v. Schermerhom 360 Spoor V. Tyzzer 70 Sparlock v, Sproule Squires r. Brown Stace & Worth's Case Stackpole vt Robbins Stacy v. Thrasher Stafford v, Albany V. Clark 9. Elliott V. Rice Standish v. Parker Stanford v. Lyon Stanley v. Epperson Staple V, Spring Staples V. Fillmore Starbuck v, Murray Starin v, Genoa Stark V. Starr SUrke V. Wilson Starkweather v. Loomis Starry v. Eorab Star Wagon Co. v, Swezy State v. Adams 9. Ailing V. Anderson t*. A none V, Severs V. Bradish V. Brewer V. Candler V. Carroll V, Cooper V. Coste V. Graham 9. Grammer 9. Hardie 9. Hauser 9. Langer 9. Little 9. Little Rock R. Co. 9. McBride 9. Mills 9. Mitchell 9. Neuert 9. Ober 9. Ogle 9. Penner 9. Porter 9. Prather 9. Rainey 9. Ramsbni^ 9. Rhoades 9. Roswell 9. Spaulding 9. Stone 9. Taylor 9. Wertzel 9. Williams 9. Woodside 9. Toung State Bank u. Fearing 9. Thompson Pasi 638 187 624 478 148, 317, 318 68 188 678 480 172, 706 688 678 94 374, 649, 667 296 876, 469 169, 187, 194 147 322,323 674, 676, 682 72 683,698 63 460 63 341 441 841,698 278 63 498 124 ' 341 146, 689 180 688 684 215 689 77 373 689 380 341 642 642 68 146, 639 187 100 146 132 460 460 341 621 841 146 562 482 568 CASES aT£D. liii State of Illinois v. Delafleld Staion V. Bryant V. Mallis Steadman v. Dahamel V. Taylor Steams v. Hendersasa V. Swift i;. Wrisley Stebbins v. Brace p. Walker Steckett v. East Saginaw btedinan v. Davis V. Patchin Stee<] V. Petty Steel r. SmeltiDg Co. p. Smith Steele v. Adams V. Lineberger p. St. Louis Ins. Ca Steen v. Bennett V. Steen Stein tf. Prairie Rose Paax 603 346 4b8 609 405 448 lao 629, eae 655 469, 692 683 280 669,600 67, 68, 626 801 680 148 639 230 205 lli4 Steinbach o. Belief Ins. Ca 84, 152. 673 Steiner v. Baughma-i 408, 440 Stempel p. Thomas 191 Stephens p. Baird 669, 637 V. Crawford 498 Stephenson p. Walker 671 9. Wilson 129 Stevens p. Brown 203 V. Dennett 669, 671, 629, 716 V. Dunbar 53 V. Fisher 139 V. McNamaia 715 V. Miner 60, 142 r. Parish • 600 o. Whistler 162 Stevenson p. Saline Ca 874 Stewart p. Anderson 899, 644, 545 V. Beck 699 V. Carleton 621, 622 V. Dent 100 V. Lansing 189 17. Metcalf 881, 627 V. Munford 561. V. Thomas 146 p. Waraer 241 Stilley p. Folger 681 Still man p. Stillman 671 Stilphen p. Houdlette 186 p. Stilphen 1H6 8tiiD«on p. Farnham 638, 642 if, Whitney 664 Stingley v. Kirkpatrick 110 Stockman p. Riverside Co. 621, 671 Stockton p. Williams 351 p. Wooley 681 Stockwell p. Coleman 322 Stockyards p. Wiggins Ferry Co. 718 Stoddard p. Barton 114 Paob Stoddard v. Cutoompt 678 p. Shetucket Foundry Co. 468 p. Thompson 114, 127 Stokeman v. Dawson 606 Stonard p. Dunkin 660, 647, 648, 649 Stone p. Covell 610 p. Dickenson 112 p. Great Western Oil Co. 611 p. Tyree 686, 712 p. Wood 147 Stoops p. Whistler 146, 160 p. Woods 131 Storer p. Storer 198 Storring p. Borren 676 Storrs p. Barker 673, 686 Stortzell p. Fulierton 119 Siout p. Lye 115 Stoutimore p. Clark 464 Stovall p. Banks 146, 150 Stowe p. Wyee 397, 409 Stowell p. Chamberlain 84, 86, 200 Strain r. Gardner 6il Strang p. Moog 53, 58, 90, 96, 99, 201, 202 Stratton p. Rastall 330 Straus p. Minzesheimer 639 Strauss v. Murtief 86 Strawn p. Strawn 389 Strecker p. Conn 664 Street v. Augusta Ins. Co. 222 Stribliug p. Prettyman 719 Striker p. Keller 163 Stringer p. Northwestern Ins. Co. 638 Strong p. Makeever 68 p. Stevens Point 86 p. Strong 70, 71 p. Waddell 340, 644, 546 Strosser v. Fort Wayne 66, 616, 621, 678, 683, 690, 692 Strother p. Butler 152 Stroughill p. Buck 862, 869, 460 Strowd p. Willis 366 Struble p. Malone 281 Struggle. The 667 Stryker v. Cassidy 688 V. Goodnow 101, 223 Stuhbs p. Johnson 581 Stnddard r. Lemmond 585 Smmp p. Findlay 677 Sturdy p. Jackaway 129 Sturgeon p. Hampton 470, 598 Sturgis p. Rogers 71 Sturtevant p. Randall 88 Stutsman p. Thomas 689 Succession of Monette 673 Suessenguth p. Bingenheimer 673 Sullivan p. Conway 6:^ p. Davis 596 Sulphine p. Dunbar 694, 627, 6:^ Sumner p. Barnard 869, 412 Sunderiin p. Struthers 384 liv CASES CITED* Paos Supeirisora v, KeDnioott 72, 09 Supples V. Canuuu 88, 152, 703 Sutliff V. Brown 77 Sutlive V. Jones 644 Suttle V. llichmond B. Co. 713 Sutton's Appeal 684 Sutton V, Casselieggi 866 jp. Wood 612 Suydam v. Barber '275 S wager v. Lehman 682 Swan V, North British Co. 457, 494, 504, 67U, 610, 632, 665, 656 Swann v. Miller 467 V. Wright 465 Swaiison v. Tarkington 684 Swartwout v. Mich. Air Line B. Co. 466 V. Payne 132 Swartz V, Swartz 666 Swayze v. Carter 684 Sweet V. Brackle/ 273 V. Brown 403 V. Tuttle 156 Sweetser v. Odd Fellows Assoc 664 Swenson v. Creson 153 Swick V. Sears 713 Swift r. Dean 627, 530 0. Dickerman 172, 174 V, Winterboiliam 650,651 Swihart v. Spaner 150 Sykes V. Bonner 178, 179 Syllivan v. Stradling 607, 610 Syme V. Badger 674 i;. Montague 864 T. Taber ». Ferguson 688 Talbot V. Bank of Rochester 485 V. Radnor 678 Tallant v. Burlington 689 Talmadge v. Chapel 318 Tams V. Bullitt 139 V. Lewis 156 Tankersley v. Pettis 58 Tflpley r. Wainwright 162 Tapp V. Lee 679 Tappan ». Bruen 108, 109 Tarleton v. Tarleton 260, 803 Tate r. Hunter 119 Taylor v. Agricultural Assoc. 713 * V. Barron 264, 818, 320 r. Bradley 611 V. Brown 716 V, Bryden 264 V. Burnap 698 V. Castle 200 V. Oroker 496 V. Dabar 440 V. £ly 692 Pass Taylor v. Kilgore 281 V. McCrackin 66 V. Means 86 V, Kashville R« Co. 660, 698, 017 V, Needham 342 V. Phelps 189, 160, 264, 287, 814 • ». Riley 598 V. Shew 261 V, Wallace 340 V. Zamira 516 Teague v. Corbitt 147 Telegraph Ca v. Davenport 606 Temple v. Williams 702 Tenant v. Elliot 663 Tennessee U. Co. v. East Ala. Ry. Co. 647 Terre Haute R. Co. v. Rodel 697 Terrell v. Grimmell 684 Terrett v. Cowenhaven 506 Terry v. Hammonds 57 Test V. Larsh 718 Teutonia Bank v. Wagner 373, 466 Teutonia Ins. Co. v. Anderson 471 Tewksbury v, Magraff 527, 628, 529, 530 Texas Banking Co. v. Hutchins 699 Texas By. Co. v. Gentry 467 Thames v, Jones 119, 137 Thatcher v. Howiand 876 V. People 470, 692 Thayer v. Arnold 720 V. Bacon 618 V. Tyler 140 Thellusson v. Woodford 674 Thielen v. Richardson 400 Third Street, In re 68 Thistle V. Berford 441 Thomas v. Citizens' Ry. Co. 467 f. Cook 625 V. Rite 63 V. Huhbell 182, 134 V. Joslin 182 V. Ketteriche 160 V. Merry 80 r. Pullis 621 V, Robinson 822, 705 V, Sterns 148 Thomason v. Odum 152 Thompson's Appeal 216, 219 Thompson v. Building Assoc. 36 V. Campbell 713 V. Hoop 681 V. Howard 673 V. Ins. Co. 661 V. Lee Co. 287 V. McKay 720 V. Merrill 449 V. Myrick 153 9. Nat. Bk. of Redemption 67 V. Roberts 128 V. Simpson 606 CASES CITED. It Pagi TbomiMoa o. Whitman 208, 204, 200, 270, 296. 706 V, Wood 194 Thomson v. Wooater 75 Thome ». Tilbury 562 Thornton v. Baker 204, 718 V. Thompson 184 Tliouvenin v. Rodriques 216 Thurlough v. Kendall 717 Tituraton o. Thurston 51, 729 Tibbetts v. Shapleigh 109, 360, 719 V. Tibbetts 674 Tibbs V. Allen 204 Tieman v. Roland 675 Tiffany v. Anderson 629 Tifft V. Munson 482 Tilghman v. Little 519, 547 Tiiley v. Bridges 90, 95 Tillotson r. MitcheU 678^ 618, 637 Tilson t;. Davis 100, 201 Tilton, The 246, 252 Tilton £>. Gordon 77 p. Nelson 578, 582 Tilyou V. Reynolds 363, 539 Tioga R. Co. t;. Blossburg & C. R. Co. 100 Tiptim V. Locomotive Works 376, 4H9 Tobey o. Bristol 68 P.Taunton 334,871 Tobin r. Allen 63u Toby V. Brown 235 Todd 0. Floumoy 143, 205 V. Gee 614 p. Kerr 689 p. Old Colony B. Co. 122 Tolman v. Smith S89 p. Sparhawk 619 Tompkins p. Tompkins 245 Tone p. Columbus 465, 469, 689, 691, 692 Torrey p. Pond 102 Towles p. Fisher 601, 603 Town V. Blackberry 688 p. Need ham 608 Towne p. Batterfleld 538, 547 Towns p. Nims 159 Townsend p. Bush 480, 5o7 p. Cowles 62.) p. Moore 245, 247 Townsend Bank p. Todd 578, 582, 5*.i7, 638,639,044,650,718 Tracy p. Goodwin l:i2, 14^ p. Lincoln 599, 612, 629, 6:11 Traftbn r. Hawes 63'{ p. United States 107 Traf k v. Hartford & New Haven R. R. 195, 1P6 Travel ers' Ins. Co. p. Edwards 565, 601 Tray hem p. Colbum 153, 154 Treadwell p. Stebbins 168 Tred way p. McDonald 1 53 Trentman p. Eldridge 337, 838, 339 Pagi Trenton Banking Co. v, Dancan 585 586,587 Trenton R. Co. v. Chambers 6; 1, 672 Trevivan p. Lawranoe 342,390,421,432 Trexlor p. Miller 212 Tribble v. Anderson 558, 566 Trieher v. Commercial Bank 563 Troyer p. Dyar 699 Trueblood p. Knox 874, 567 Trufort, In re 230, 261, 262 Trull V. Eastman 405 p. Skinner 444, 578 Tucker p. Clarke 485 p. Con well 585 Tufu p. Charlestown 370 p. McClure 663 Tuite p. Stevens 371, 685 Tully p. Tully 542 Tupper p. Phipps 218 TurbiU's Case 138 Turner p. First National Bank 544 p. Flinn 473, 479 p. Waddington 268 p. Waldo 645 Tumipseed p. Hudson 570, 574, 578,699 Tuska p. O'Brien 152, 164 Tuttle p. Harrill 153 Twituhell p. Bridge 610 Twogood p. Fence 73 Tyler p. Bailey 493 p. Mass Ins. Co. 662 p. Odd Fellows Assoa 629, 688 U. Uhl p. Harvey 564 Umlauf p. Umlanf 80 Underwood p. McVeigh 203 Unfried i\ Huberer 76, 78, 181, 599 Union Depot Co. p. 8t. Louis 461 Union Ins. Co. p. McGookey 685 p. Slee 688, 639, 684, 688 Union Petroleum Co. p. Bliven Pe- troleum Co. 129 Union R. Co., In re 204 Union Sav. Assoc v. Kehlor 562 Union Sav. Inst. p. Wilmot 581 Union School Township p. First National Bank 470, 598 United Society i*. Underwood 112 United States p. Ames 107 p. Chouteau 88 p. Cushman 112 p. Ellsworth 686 p. Flint 254, 307 V. Hodson 852 p. Kilpatrick 341, 598 p. Lane 703 p. Lawson 686 p. Parker 5 ), 72 M CASES CITED. Paob United States v. Price 107, 1 1 1 v. Reiter 66 Unity Joint Stock Assoc, v. King 606 Univentity v. Maultsby 601 Unthank v. Travelers' Ins. Co. 665 Upshaw V. Gibbons 606 V. Upsliaw C76, 670 Upton u. Tribilcock 470 Usher v, Richardson 448, 449 Usina v. Wilder 365 Utterback v, Phillips 389 V. Vagliano v. Bank of England 457, 481, 4»6, 494, 496, 498, 612, 631, 664, 666 Valentine i;. Malioney 131, 182, 134 Valle V. Clemens 399 Vallejo Land Assoc, v. Viera 399 Vallette v. Bennett 467, 693 Van Alen o. Rogers 166 Van Bibber v, Betrne 678 Vance v. Johnson 543, 544, 646 Vandenheuvel v. United Ins. Co. 241 Vanderpoel v. Van Valkenburgh 232 Vanderpool v. Brake 681 Vanderwerker i;. Vermont Cent. R. Co. 70 Van Doren v. Horton 216 Van Fossen v. State 244, 246 Van Hook r. Whitlock 680 Van Horn v. Overman 617, 638 Van Horstrup v. Madison 470 Van Metre w. Wolf 117 Van Ness v. Hadsell 471, 618, 639 Vanneter v, Crossman 629 Vanquelin v. Bonard 260. 302 Van Rensselaer o. Kearney 377, 396, 398 Van Santen v. Standard Oil Co. 476 Van Steenbergh v, Bigelow 208 Van Vechten v. Terrv 136 Vardier v. Railroad Co. 840, 608 Vardon, In r© 676 Vamam v. Smith 500, 610 Vaughan r. Morrison 100 V. Suggs 230 V, Vanderstegen 603 Veale v. Warner 507 Venable v. Beauchamp 411 Vere »% Lewis 486 Verplanck v. Van Buren 119 Vibhard v. Roderick 564 Vicksburg R. Co. v. Ragsdale 686 Viele V, Judson 596, 632 Vinton V, King 60 Voopht V. Winch 697, 698 Voorliecs v, Seymour 151 Voorhies v. Wtiite 815, 368 Voorhis v. Olrastead 639, 646 Vose V. Cockcroft 689 Vredenburgh t). Burnet Vreeland v. Ellsworth W. Pass 441, 442 584 Waddle v. Ishe 56 Wade V. Bunn 713 &. Howard 65 Wadhams v. Gay 74, 102 V, Swan 395 Wadleigh t;. Marathon Bank 345 Wadsworth v. Connell 51, 729 VVaggener v. Lyles 647 Wagner's Appeal 587 Walbridge v. Shaw 56 Walcott v. Swampscott 689 Walden v. Bodley 58,634 Waldron v. McCarty 622 V. Sloper 661 V. Toledo Ry. Co. 693 Walker v. Ames 77 V. Carleton 578 V. Chase 188 V. Hall 410 V. Mitchell 100 V. Mulvean 685 V. Richardson 525 V. Sioux City Co. 382 17. Walker 597, 722 i;. Witter 287, 256, 258, 260 V. Worcester 871 Wallace r. McConnell 141 V. Maxwell 341 V, Miner • 339 V. Minneapolis Elevator Co. 660 Walling V. Beers 52, 262, 290 Walsh V. Durkin 103. 311 i;. Mclntire 76, 97 V, Vamey 673 Walthall V. Rives 3U0 Walton r. Shelly 567 t;. Waterhouse 393 Wandling v. Straw 203, 206, 209 Wannell v. Kern 627, 628 Wanzer v. Bright 62, 307 V. De Bau^ 220 Ward V. Allen 486 17. Berkshire Ins. Co. 699 V, Jolmson 107, 4G7 17. Mcintosh 360 V.Rich 171 17. Ryan 606, 641 17. State 66 Warder t;. Baldwin 638, 645 Ware i\ Pertival 88, 86, icOO Warfield t;. Davis 121 Waring v. Reynolds 117 Warner v, Comstock 122, 146 V. Middlesex Assur. Co. 715 Warren v. Comings 194 CASES CITED. Ivii Warren v. Flagg 9. Heame V, Lusk 9. Milliken r. Spencer Water Co. Warrenaer v. Warrender Warrenton v. Arringtoa Pagi 810 6(K) 209,203 640 55,597 244 662,694 Washington Bridge Ca v. Stewart 203 Washington Ins. Co. p. Colton 382 Washington Packet Ca v. Sickles 88 Waters's Appeal 843 Watertown v. Cowen 003 9. Wliite 647 Water Witch, The 684 Watkins v. Holman 801; 846, 8o3 Watson V. Hewitt 608 V. Hopkins 209 9. Knight 690 9. Lane 641 9. McLaren 696 9. New England Bank 293 9. Watson 678, 683 Watt's Appeal 600 Watt 9. McGalliard 688 Walters v. Smith 105 Watterson v. I^ons 671 Watts 9. Gayle 146, 150 9. Welman 861 9. WiUon 164 Way 9. Arnold 438 9. Howe 802 9. Lewis 128, 146, 150 Wajland 9. Porterileld 276 Weale 9. Lower 417, 489 Weathersbee v, Farrar 600, 603 Webb 0. Alexander 522 9. Austin 890, 420, 421 9. Buckalew 69, 60 9. Cook 229 9. Davis 849, 469 9. Heme Bay Co. 866,876,468,470 Webster v. Bailey 627 r. Lee 69, 166 9. Lowell 140 Wedge 9. Moor^ 844 Weed V. Burt 103 Weed Sewing Machine Co. v. Emer- son 862, 895 Weedon 9. Landreaux 673 Weeks v. Pearson 104, 811, 818 Weikel 9. Long 78 Weil 9. Uzzell 845 Weinstein v. National Bank 611 Weiser o. Weiser 410 Welby 9. Welby 677 Welch 9. Sykes 293 Weld 9. Baxter 393 9. Farmington 664 Welland Canal Co. 9. Hathaway 669 Wellborn v, Finley 862 Wells 9. Sheerer . 684 Paqi Welsch V. Belleville Bank 460 Wendell 9. Van UenAelaer 686, 665 West 9. Menard Agr. Board 468 9. Piatt 152 9. Tilghroan 718 West Buffalo 9. Walker 232 Westcott 9. Brown 298, 296 Western M. Co. v. Peytonia Coal Co. 895 9. Virginia Cosl Co. 100, 128, 160 Western Union R. Co. ». Wagner 475 Westerwelt 9. Lewis 301 Westobey 9. Day 140 Wetter 9. Rucker 188, 140 Wetumpka v, Wetumpka Wharf Co. « 162, 154, 201, 202 Weyauwega 9. Ayling 468, 470 Weyh 9. Boylan 847, 681, 596 Weyr 9. Zane 281 Whalin 9. White 611, 522 Wheatley, In re 676 Wheeler 9. Aldrich 140 9. New Brunswick B. Co. 584 9. Wheeler 599 Wheelock 9. Henshaw 862 9. Kost 466, 687 9. Lee 719 Whicker 9. Hume 280, 246 Whipple 9. Parker 466 9. Bobbins 141 Whistler ». Webster 674, 675 Whitaker 9. Bramson 73, 78 9. MerriU 220 9. Williams 612 White 9. Ashton 574 9. Barlow 514 9. Brocaw 403 9. Buccleuch 74 9. Crow 62, 804 9. Garden 186 9. Hapemaa 718 V. Jones 209 9. Kyle 129 9. Merritt 76, 175, 178, 185 9. Morgan 665 9. Moseley 168, 194, 195 9. Patten 482 9. Smith 870 9. Walker 677 9. Ward 77 9. Wilks 476 Whitehouse v. Frost 476 Whitfield 9. Fausset 428, 486, 440 Wliitford 9. Crooks 127, 136 Whiting 9. Beebe 104 9. Dewey 375 9. Johnson 801 Whitman 9. Boiling 685 9. Merrill 97 Whitroore 9. Nickerson 665 Whitney 9. AUaire 718 '*-m Ivili GASES CITED. Whitney v. Clarendon V, Porter • V. Robinson V. WaUh Wliitney Arms Co. r. Barlow Whittaker v. Wliittaker Whitteniore v. Stephens Wliittier v, Wendell Wliitiington p. Wright Wliitton t^. Peacock Whitwi'll V. Vincent r. Winslow Wickersliam v, Whedon Wiece v. Marbat Wielnnd v. Kobick Wiggin V. Wiggin Wight V. Shaw Wilbur V, Abbot V. Goodrich Wilcher v, Robertaon 161, Wilcox V. Howell V, Eaasick Wilcozon V. Osbom Wilder t^. St Paul Wiles V, Woodward Wiley V. Pratt Wilheltn v. Caul Wilkins v. Judge V, May Wilkinson v. Dent V. Hall 17. Johnson V, Kirby V. Scutt r. Searcy V. Wilson 136, Wilks V. Georgia R. Ca V. Kilpatrick Willard v. 8 perry V. Whitney Willets V. Phoenix Bank Williams v, Allison V. Armroyd 9. C louse i;. Conger V. Fiizhugh 9. Gideon V. Glenny V. Ileales V. Jaf:k8on 17. Jersey V. Jones V. ^latthews V. Niagara Ins. Co. 17. Preston V, Saunders 17. Suffolk Ins. Co. V, Sutton 17. Swetland 17. Vail 17. Walbridge 480, Paob 171 118, 204 466 226 4G7 896,440 700 312 606 363 683 672, 673 195 846 605 623 389, 401 276 666 203,206 688, 626 296 846,346 636 351 203,208 194 99, 202 367 676. 677 141.314 488,490 738 478 681 671, 720 464 604 194 38 604 688 242 153 346 18:) B84 638 611 629 716 238,266 605 561 264 230, 245 226 112 374 667 603,667 PAflB Williams v. Williams 47, 76, 152, 157, 160. 164, 229, 231, 242 t7. Wilmington R. Co. 475, 622 Williamson v, Mimms 682 17. New Jersey R. Co. 669 V. Woodman 378 Willink V. Morris Canal Co. 186 WiUison V. Watkins 634, 644, 646, 546 Willmott u. Barber 665 Willnughby v. Middleton 675, 676 Wiimer i7. State 6:^ Wilmington Mining Co. v. Allen 666 Wilson 17. Andcrton 650, 551 r. Chalfant 17. Deen V Henry V. Jackson 17. Maltby 17. Niles 17. Ray 17. Townsend 17. Tunstall V. Western Land Co. 17. Widenham 17. Williams r. Wilson Wilt V. Welsh Wimraer v. Ficklin Winchester v, Evans 17. Heiskell 17. Jackson Winegar v. Fowler WingHte 17. Haywood Win lock 17. Hardy Winn V. Cabot Winnard v. Robbins Winship i*. Winship Winsmith t7. Winsmith Winstell V. Hehl Winthrop Iron Co. v. Meeker Winton v. Hart Wisconsin v. Torinus 666 80, 87, 96, 189, 201 129 296 642 301 67 676 809 349, 658 402 608 666 602 713 264,208 114 306 638 160,208 346, 356, 368 876 647 681 473 622 68 661 85. 202 Wisconsin Central R. Co. o. Wis- consin Land Co. 846 Wise 17. Fuller 578 17. Hilton 139 17. Rhodes 674 Withers i^. Reynolds 198 17. Sims 87, 163 Withington i7. Warren 70 Witte V. Lock wood 178 Witzler i7. ColUns 475 Wivel's Case 437 Wixom 17. Stephens 61 Woburnt7. Henshaw 846,367,360,646, 646, 662, 684 Wohlford 17. Compton 66, 72 Wolcott 17. Wolcott 212 WoUaston r. King 674 Womack i7. Dearman 287 Wood r. Bayard 119 CASES CITED. lix Wood V. Chapin r. Corl r. Fant V. Gamble r. Hamphrej V. Jackson V. Nicbols V. Ostram V. Rawliogs V. Seely r. Terry ©. TarDer V. Vance V. Watkinson Woodbridge v. Banning Woodgate v. Fleet Woodhull V. Roeenthal Woodley u. Coventry Woodruff V, Erie By. Co. V, Taylor Woods V. North V. Pangbam V. Russell V. Wilson Woodward v, Tudor Wood worth v. Paige Wooley r. United States Worcester Med. Inst. v. Harding Worrall ». Gheen Wortham v. Garloy Wray v. Davenport Wright's Appeal Wright p. Andrews 136, 20P, 290, 292, 298, 296, 297, 801 V. Arnold 608 V. Boynton 290 V, De Groff 887, 689 V. Deklyne 69 o. Lang 146, 666 Pass 882,884 168 68 810 68 eO, 88, 160 699 698, 699 720 607,684 889 644 606 299 66, 411, 412 162 596 649, 647 614 284,300 486 172, 174 198 687 617 449 66 466 494 607 693 670 Wright V. Leonard V. McPike V. Newton V. Phillips V. Snow V. Tukey V. Willis r. Wright Wyatt V. lUrnbo Pass 608,604 688 611, 618 116 606 876 685 428, 487, 440 140, 262 Y. Tarborongh v. Avant 202 Yare v, Gough 818 Yates P, Hurd 463,688 Yeoman v. Younger 100,280 York V. Allen 867 Yorkly v. Stinson 674 Yorks V. Steele 136 Young, Ex parte 146,160 Young V. Bablion 687, 669 V. Grote 494, 664 V. Mutual Ins. Co. 471 V. Pritchard 96,168 V. Raincock 862, 869 V, Stoutz 114 Youngblood v. Cunningham 661 Z. Zell's Appeal 632 Zeller v. Eckert 634 Zimmler v. San Louis Water Co. 866 Zoeller i;. Riley 142, 702 Zottman v, San Francisco 686 Zuchtmann u. Roberts 629. 636 Zwietusch v. Walkins 687, 718 THE LAW OF ESTOPPEL. INTRODUCTION. THE LAW OF ESTOPPEL. NATURE OP ESTOPPEL. The law of Estoppel is the law of rights conferred or fixed in one of three ways, namely, by record, by deed, or by facts in pais. The term * record' signifies, (1) the legislature's roll, (2) the judgment roll of a court of competent jurisdiction ; * deed,' a contract under seal, and especially a conveyance of land or some interest therein ; * facts in pais,' (1) facts fixed by or in virtue of contract, (2) acts or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is alleged.^ It may be observed of the third class of estoppels, however, that they sometimes arise upon sealed instruments also, as in the case of a ten- ancy by lease under seal ; but in such cases, while the lease may produce one or more estoppels by deed, the main estoppel arising upon it (that by which a tenant is precluded from denying his landlord's title) is of the same force and eflEect as where the tenancy arises in pais. And hence the tenant's estoppel, whether the 1 In the fiuctuAting condition of the believed to be preferable to strict defini- law description of the term 'estoppel' is tion. Furtberi see chapters 2, 7, 13. 4 INTRODUCTION. holding be by sealed lease or otherwise, is treated under the third division of the subject. Originally the law of estoppel had regard to facts only; the record, the deed, the matter in pais, each established some fact or some set of facts. It is still true that the law of estoppel, in its ordinary manifesta- tion, has regard to facts ; but then it has been ex- tended in recent times, in name at least, to excuses of undertakings and duties.^ Through all its phases, however, its distinguishing feature is that of a right ^ conferred, which, whether founded upon the established fact or the waiver of performance of a duty, is to be taken specifically, and not in some alternative. This is the link which binds together subjects so different in appearance as judgment, deed, and matter in pais. These divisions of the law of estoppel find their origin early in this coijimon conception; but they do not appear together from the first. Historically, they are separated by three long and indefinite periods, which may be termed the ancient, middle, and recent. To the first period belongs the doctrine of estoppel by record ; to the second belong the doctrines of estoppel by deed, and also of estoppel in pais as it existed prior to and in the time of Coke ; to the third belongs the modern doctrine of estoppel in pais. No definite limits can be assigned, as has been intimated, to the origin of either of these branches of estoppel. The first has ^ If all cases in which a duty not in why not, if waiver is to be so treated ?) point of fact performed, but under the a wide field is opened. It may be circumstances to be taken specifically doubted if anything is gained by eall> as performed, were to be treitted as ing waiver estoppel, failing under the head of estoppel (luid ^ Conversely, a burden of course. NATURE OP ESTOPPEL. 5 existed of course from the time of the constitution of courts ; the second is found in the earliest collections of the English law ; ^ the third has grown up within a century,^ and is still growing rapidly, though some of its growth is fictitious, being only a change of nomenclature. But though the conception of rights by estoppel is thus a very old one and appears to be most reasonable, and though it has been steadily expanding, especially during the present century, it has not always been regarded with favor. The courts used to call estoppels odious; indeed, they have not yet ceased altogether to apply the term to them. The definition given by Coke has often been referred to as giving, ground for the application of the term. He said that the name * estoppel,' or * conclusion,' was given ^ because a man's own act or acceptance stoppeth. or closeth up his mouth to allege or plead the truth.' * The definition certainly was not felicitous; and if it were altogether correct, the doctrine of estoppel might well be regarded as odious.* It seems to be true, however, that in Coke's day the doctrine was not favored, perhaps because it was in fact sometimes used to shut out the truth against reason and sound policy.* 1 Statham's and Fitzherbert's and creditable piece of work, have col- Abridgments, and Year-Bookfl temp. lected and commented upon the Enp- Edw. 2, annis 1807-1826. Theee are lish dicta in regard to the supposed the earliest printed Toluroes of the odiousness of estoppels. Estoppel, Tear-Books, except some of the reign of 9-16. Kdw. I. recently printed by authority of ^ Note to Duchess of Kingston's the Master of the Rolls. Case, 2 Smith's L. C. 693, 6th Eng. ed. * See chapters 2, 6, 6, 7, 11, 13, 14. A survival may be seen in Folger i\ * Coke, Litt. 352 a. Palmer, 86 La. An. 743, admission of a * Messrs. Everest & Strode, in a new witness held conclusive. See chnpter ?» 6 INTRODUCTION. In modern times the doctrine has lost all ground of odium and become one of the most important, useful, and just factors of the law.^ It is safe to say that at the present day it is seldom employed in any questionable way to exclude the truth ; its whole force being directed to preclude parties, and those in privity with them, from unsettling what has been fittingly determined. A just principle, it can be and is daily administered to the well-being of society ; unfortunate indeed would it be if this were not true. Estoppel would hardly have needed a justification but for the authority of a definition by Sir Edward Coke. The right conferred by an estoppel may be a right in personam, available only against or by determinate persons ; or it may be a right in rem, available inter omnes. Where the estoppel creates a right in personam only, as is ordinarily the case, the meaning is that the claims of others than those who were parties to the transac- tion in question were not carried into the estoppel There is a perfect estoppel, but a limited right. Where on the other hand the claims of all who were legally interested were embraced, the estoppel creates a right in rem, as broad as the sale of a chattel by one exclusively owning it. Thus, if those who have the exclusive right to try a cause before the courts try it lawfully, or if a cause is tried to which all the world are made parties according to law, judgment for the plaintiff will create a right available not merely be- 1 CaldweU r. Smith, 77 Ala. 157. 165. NATURE OP ESTOPPEL. 7 tween the contestants but generally ; though this would not be true in regard to the findings or the grounds of the decision. The right in regard to those would be in personam.^ Again, if A, having no title to a piece of land, should imdertake to convey it to B, with warranty, and should afterwards acquire full title to it, the full title would inure to B, and his right, beginning and accruing by estoppel, would be ^fed'^ into a right in rem of the broadest; for in the case supposed no one else has any right in the property.^ So again if the sole owner of a horse stand by and permit another to sell it as his own, and I buy it in ignorance of the real ownership, I have acquired a right by estoppel against the owner ; and that right is an equally broad right in rem, because he was the sole owner.* These are typical illustrations of the three divisions of the substantive law of estoppel. Besides this sub- stantive law there is an adjective law of the subject.^ To see the process in which the whole law is worked out is the object .of this book. An elementary statement of the principles of the law of estoppel will now be made, to be expanded and illustrated in the text following. 1 See chapter 2. • See chapter 11. * A figure of the older law, which * See chapter 18. now mnst he taken cautiously. See * Part IV. cliapter 11» § 4. INSTITUTES. There is a twofold estoppel arising by record, i. e. from the proceedings of the courts : first, in the record considered as a memorial or entry of the judgment ; and secondly, in the record considered as a judgment. In the fii*st case mentioned, the record has conclusive eflfect upon all the world. It imports absolute verity, not only against the parties to it and those in privity with them, but against strangers also ; no one may produce evidence to impeach it.^ The estoppel of a record as a judgment is of greater impor- tance. The force and e£fect of a judgment depend, first, upon the nature of the proceeding in which it was rendered, i. e. upon the question whether it was an action in rem or in per- sonam ; and secondly, upon the forum in which it was pro- nounced, i. e. upon the question whether it was a judgment of a domestic or of a foreign court. A judgment in rem, a description of which — the terra can- not be concisely defined — will be found in the second chapter of the text, is conclusive upon all persons.^ Proceedings in attachment, replevin, and the like, are sometimes spoken of as proceedings in rem, but not with accuracy. The judgment in these cases binds only parties and privies, not strangers also. A judgment in personam binds only the parties to the proceed- ing and those in privity with them. It has ordinarily no efifect upon the rights of third persons.* 1 Chapter 1. » Chapter 2. " lb., where the distinctions between the two kinds of judgments are set out. INSTITUTES. 9 In order to work an estoppel and preclude the parties from relitigating questions once adjudicated, the judgment must have been rendered by a legally constituted court.^ This conclusive- ness has, however, sometimes been extended to the decrees of tribunals other than the ordinary public courts of justice. A college sentence of expulsion was held conclusive in a case before Lord Mansfield.^ Judgments of military courts and of courts-martial are also conclusive.' The judgments of the ordinary domestic courts of inferior jurisdiction are conclusive, if it appear that they have acquired jurisdiction.^ The following classes of judgments among others have also been held to be unimpeachable within limits, except by appeal or by some direct proceeding to set them aside : the decisions of the comptroller of the currency, the commissioner of patents, agreed judgments, awards of arbitrators, judgments by confession, and judgments by default.^ In all cases, however, in order to preclude the parties and their privies from contesting the matters again, the judgment must have been final, and rendered upon the merits, and judg- ment must in fact have been entered.^ It must also have been valid. If void it cannot work an estoppel ; but it is otherwise of voidable judgments.^ If, however, the judgment possess all these elements, it is held to be immaterial whether it was rendered before or after the commencement of the action in which it is interposed as an estoppel^ Judgments, however, possess this conclusiveness only in re- spect of such matters as were necessary to the decision of the case. In regard to facts not material the judgment is not conclusive, but may be collaterally impeached.® With this qualification matters once determined in a court of competent jurisdiction may never again be called in question by parties or privies against objection, though the judgment may have been erroneous and liable to and certain of reversal in a higher 1 Chapter 2. « lb. » lb. * lb. » lb. • lb. » lb. » lb. • Chapter 8. 10 INTRODUCTION. court.^ We must now proceed to a more detailed examination of this subject. And first, of domestic judgments in personam. This subject is divided into four branches : first, estoppel by former judgment; secondly, estoppel by verdict; thirdly, the special extent and operation of judgment and verdict estoppels ; and fourthly, the impeachment of judgments in collateral actions. The nile in respect to the first division is that the judgment of a court of competent jurisdiction may be relied upon as an estoppel in any subsequent case founded upon the same cause of action.^ The maxim is, * Nemo bis vexari debet pro una et eadem causa.' The rule in criminal law, that no one shall twice be put in jeopardy of life or limb for the same offence, is the counterpart of this doctrine ; but it is not the same thing. In the case of estoppel by verdict it is immaterial whether the cause of action in which the verdict was given, was the same in the subsequent suit or not. The rule in this case is that a point once determined between the same parties, or those under whom they claim, may be relied upon as an estoppel in any cause of action that may thereafter be tried. The estoppel arises upon the special findings of the jury. But though it is not necessary that the cause of action should be the same in both cases, it is essential that the point decided should be precisely the same as the one raised in the subsequent suit.^ In regard to the effect and operation of judgment and ver- dict estoppels, it is, in the case of proceedings in personam, a general rule that only parties and privies are bound by or may take advantage of the adjudication.* The estoppel must be mutual ; it cannot be employed by or against strangers. The term 'parties' embraces all persons having a right to con- trol the proceedings, make defence, adduce and cross-examine witnesses, and to appeal from the decision when an appeal lies.^ In some cases, however, persons not parties to an action may take advantage of the judgment. In the case of a judgment 1 Chapter 8. « lb. » lb. * lb. * lb. INSTITUTES. 11 against one of several joint contractors, if an action be thereafter brought against another of the contractors, he may plead the judgment rendered against his fellow, and this, according to the. principles of the common law, will bar the action. This pro- ceeds upon the ground of merger. The plaintiff had but one cause of action, and this was merged by the former proceedings into the higher claim of a judgment.^ This result, however, is not effected, according to the Amer- ican law, by a judgment against one of several joint tortfeasors ; only the defendant and those claiming under him can plead the judgment. The tort is considered as joint and several.^ In England the same rule prevails in such a case as in the case of a judgment against one of several joint contractors. It is there held that the tort is joint only, and that it becomes merged in the judgment whether rendered against a part, or all, of the wrongdoers.* In other cases where the parties are really the same, though nominally different, the judgment will work an estoppel upon the real parties; as in the case of a judgment obtained by a principal or by a bailor, which estops the agent or bailee to sue upon the same cause of action.^ But the converse of this rule does not hold unless the suit be brought at the instance of, or be acquiesced in, by the principal or bailor.^ Judgment in ejectment, under the old fictitious form of proceeding, is an- other instance of this kind.® A different rule prevails where the parties are nominally the same but really different; judg- ment in such cases does not per se operate as an estoppel upon the real parties.^ Persons liable over are bound by judgments against the parties to whom they are so liable, upon notice to appear aud defend ; ® but one who was merely a witness upon the former trial will not, it seems, be bound by the judgment ; for appear- ing as a witness does not give a person the rights of a party .^ 1 Chapter 8. « lb. « lb. * lb. » lb. « lb. 'lb. • lb. » lb. 12 INTRODUCTION. Judgment upon garnishment or trustee process operates as an estoppel in an action by the original creditor of the gar- .nishee or trustee, to the extent of the judgment. But the creditor may prove that the debt is greater than it was admitted to be by the debtor.^ It is an important qualification of the rule that judgments bind the parties, that they bind them only in the character in which they appeared in the proceedings. A judgment against a person as administrator does not bind him in his owu char- acter. And the like is true of estoppels generally.* There are some cases in which judgments in personam operate upon strangers. One of these cases is where a person is affected by a chain of title under a judgment, sale, and execution. When a judgment is introduced as a document connected with the chain of title, the other party will not be permitted to impeach it upon the ground that it is res inter alios acta.^ And generally judgments in personam, when not fraudulent, are conclusive upon third persons of the relationsliip established between the parties, and of the extent of that relationship.* In the law of estoppel a person stands in the relation of privy to another (1) by succeeding to the position of that other as regards the subject of the estoppel, (2) by holding in subordi- nation to the rights of that other. Privity may exist in law, in blood, or in estate ; and the privy will be bound by the estoppel as a burden, or have the benefit of it as a right, according to the case.^ There is no privity in the relations of guarantor and principal, surety and principal, co-sureties, and the like, in the sense of making judgments against the one operate directly against the other, without notice to appear and defend.® Nor is a judgment against an administrator or executor conclusive at common law against an heir or devisee of the deceased.' But an adminis- 1 Chapter S. « lb. Mb. * lb. 6 lb. « lb. ' lb. INSTITUTES. 18 trator is in privity with his intestate in respect of the per- sonalty ; and an executor is in privity with Ids testator to the extent to which, by the terms of the will, he succeeds to the position of the testator.^ Whether an administrator de bonis non'is in privity with his predecessor, the executor or admin- istrator, is a point of conflict among the authorities. The weight of authority is probably in the negative.^ We have already remarked that judgments are only con- clusive of matters essential to the decision ; but it often becomes a question of difficulty to determine the proper ap- plication of the rule. It seems, however, in the case of domestic judgments that the rule is not to be taken strictly, as applicable only to the main question in dispute, but that the judgment is conclusive also of such matters, actually passed upon, as may have become essential to the decision of the action.^ It has been a point of great discussion whether a judgment is conclusive of matters which might have been adjudicated but which, in point of fact, were not put in issue ; but, according to the weight of authority and the better doctrine, the judgment operates only upon such matters as were necessary parts of the cause of action. There is no estoppel, therefore, except in re- spect of such matters as the parties to the cause were bound to litigate in it ; and the parties are not bound to litigate anything except the single cause of action tried> But there is a wide difference between the case where a party omits to introduce evidence of one of several demands, or of a counter demand, and a case where he fails to produce suffi- cient evidence to sustain his position. In the latter case an estoppel will arise from the judgment.^ It is well settled at the present day that an action cannot be maintained to recover money paid under a judgment by reason of evidence subsequently discovered showing that the judgment should never have been rendered.^ But it has been 1 ChApter 8. * lb, < lb. « lb. » lb. « lb. 14 INTRODUCTION. held that money obtained by extortion, under the color of legal process, may be recovered.^ It is a geneml principle applicable to the domestic judgments of superior couits, though not universally accepted, that there can be no impeachment of the jurisdiction of the court in which the judgment in controversy was rendered, unless it appear from the face of the recorf that the court had not acquired jurisdic- tion ^ In the case of the superior courts proceeding according to the course of the common law, the jurisdiction will be con- clusively presumed in the absence of anything in the record showing that the court had riot obtained jurisdiction.^ In cases where these courts proceed otherwise than according to the common law, there is some conflict whether the same presump- tions will be raised ; but most of the courts hold that in such cases judgments are reduced to the grade of judgments of the inferior courts, so far as any presumptions respecting jurisdic tion are concerned.* Judgments of inferior courts may be impeached for want of jurisdiction, except, possibly, in certain cases where there has been an adjudication of jurisdiction by the inferior court on general appearance of the defendant.^ According to the weight of authority, domestic judgments of the superior courts are not liable to impeachment on the ground that they were obtained by fraud, except in the sense of collu- sion, corruption of the court or of counsel, or the like ctise.* Nor is it probable that judgments of inferior courts may be im- peached for fraud in the cause of action ; but judgment obtained by fraud at the trial would make a different caseJ Of domestic and foreign judgments in rem, the most familiar example is found in the adjudications of the Adinimlty in matters of prize. These are conclusive against all the world both of the change of property, and of the fact for which the condemnation was pronounced.^ So of the condemnation and 1 Chapter 8. * lb. « lb. * lb. » lb. • lb. T lb. 8 Chapters 4, 5. INSTITUTES. 15 acquittal of goods in the Exchequer, so far as the judgment is concerned.^ So of decrees establishing pedigree,^ decrees in matters of maiTiage and divorce,^ decrees of the Court of Pro- bate,^ orders in some of the states concerning the settlement and removal of paupers,'^ decrees appointing tutors to minors,^ and judgments confirming the reports of commissioners of boundary.^ But probably only judgments in prize cases are conclusive inter omiies in regard to the findings and grounds of decision.^ Foreign judgments in rem have, from an early period, been regarded with high favor by the courts ; they are held equally * conclusive with the judgments of domestic courts in respect of the merits of the matter adjudicated.^ In respect of both foreign and domestic judgments in rem, the same rules prevail concerning the extent and operation of the judgment itself (as distinguished from findings and grounds), as in the case of domestic judgments in personam, with the exception that they bind all persons, and not merely the actual parties and their privies.^^ But the jurisdiction is, in all cases probably, open to inquiry.^^ Until within a recent period the position to be accorded to judgments in personam, rendered in foreign nations, was a matter of much doubt and fluctuation in the courts of Eng- land ',P but it has finally been settled that the judgments of foreign and colonial courts of competent jurisdiction are con- clusive and unimpeachable upon the merits.^^ The doctrine is not yet altogether settled in America, but the tendency of authority is in the same direction.^^ In regard to judgments rendered in courts of the sister states of the Union, the matter was made the subject of a constitu- tional provision, which declares that full faith and credit shall be given in each state to the public acts, records, and judicial 1 Chapters 4, 6. * n>. « lb. * lb. » lb. • lb. t lb. « lb. • lb. M Chapter 6. n lb. M Chapter 6. » lb. " lb. 16 INTRODUCTION. proceedings of every other state. At first, however, this provi- sion was generally construed as meaning merely that judgments of the sister states were to be regarded as prima facie evidence of their correctness.^ But this doctrine was soon overruled by the Supreme Court of the United States ; and it was there decided that the meaning of the constitutional provision, and of tlie act of Congress passed to carry the same into efEect, was that the judgments of each state should be received as equally conclusive in every other state, as in the state in which they were rendered.* Judgments in personam of foreign countries are liable to impeachment for want of jurisdiction ; for they are not regarded technically as records.® Judgments of courts of the sister American states are regarded by most of the courts as record evidence, and entitled to much of the high consideration due to records of the domestic judgments. But it is agreed that parties and privies are not estopped to inquire into the court's jurisdiction, though the record sets out facts which if true would be sufficient to give jurisdiction to the tribunal.* Jurisdiction over non-residents cannot be acquired so as to entitle the judgment to effect beyond the state in which it was rendered, without personal notice to the defendant within the state, or appearance by him in the suit; and legislative acts declaring that judgments may be rendered in any other, way, as in the case of foreign attachments, have no extra-territorial effect. The judgment is a nullity when proceeded upon in personam in any other, or even in the same, state.^ It is settled that judgments of the sister states may not be impeached at law for fraud in obtaining them or in the cause of action ; ^ but there is some conflict whether proceedings upon such judgments may be restrained in chancery.^ The question has never received an authoritative answer from the Supreme 1 Chapter 6. « lb. Mb. * lb. ft lb. « lb. T lb. INSTITUTES. 17 Court of the United States. Fraud in obtaining judgment is a proper ground for impeaching judgments rendered in a foreign country.^ The doctrine of merger is held inapplicable to judgments rendered in foreign nations; and the plaintiff may therefore sue de novo in the domestic courts if he desire.^ A different rule obtains in respect of the judgments of the sister American states. As these have the force of domestic judgments, the law of merger prevails, and the plaintiff, if he sue at all in another state, must bring his action upon the judgment' The relation of privity does not exist between administrators appointed in different states or countries ; and therefore a judg- ment against a foreign administrator cannot be an estoppel against a co-administrator acting in the state of the forum ; but it has been said to be otherwise in the case of an executor in one state and a succeeding administrator de bonis non in another.* The authorities are in conflict upon the question whether judgments of the sister states of inferior jurisdiction are em- braced within the language of the Constitution and act of Congress.** The question has never gone to the Supreme Court of the United States. The jurisdiction of such courts, however, is subject to impeachment except perhaps where there has been, between citizens of the sister state, an adjudication upon the point* The second principal division of estoppel is denominated estoppel by deed. The law declares that no man shall be allowed to dispute his own solemn deed.^ Thd same rule pre- vails too, as in the case of estoppels by judgments in personam, that the effect of the estoppel is limited to parties and those claiming under them. The conclusion must be mutual; and strangers are not bound by, and cannot take advantage of, the 1 Chapter 6. « lb. « lb. * IK » lb. • lb. t Chapter 7. 18 INTBODUCTION. estoppel^ And the rule is also to be understood with the qualification that the parties are only affected in the character in which they executed the instrument^ The parties, however, in order to raise this estoppel, must be competent to contract ; and hence there can be no estoppel by deed against a married woman not sui juris, or an infant.^ Of the further limitations of the doctrine the following should be observed: 1. The deed must be valid; a void deed cannot create an estoppel except perhaps in certain cases where its invalidity depends upon some external fact notice of which cannot be imputed to the party alleging the estoppel. 2. The deed does not work an estoppel in matters collateral 3. If the instrument be a deed-poll, the estoppel in general applies only against the party executing, except in the case of leases. 4. Es- toppel against estoppel sets the matter at large ; as where the deed is encountered by a later one intended to discharge or modify the first.^ 6. And there is no estoppel concerning any particular allegation where the deed contains other clear state- ments at variance with it^ Eecitals strictly speaking are the preliminary statements of such deeds, agreements, or matters of fact as are introduced to explain the reasons for the execution of the deed ; but the term is also employed to designate any allegation in the instrument.^ Particular and definite recitals alone work an estoppel.^ There is no conclusion if the allegation is made in a general and indefinite manner.^ The subject of title by estoppel, or estates by estoppel, is the most extensive branch of estoppels by deed. Such a title arises in general terms where a grantor "without title makes a lease or conveyance of land by deed with warranty, and subse- quently, by descent or purchase, acquires a title to the premises. In such a case the after-acquired title 'inures' by way of estoppel to the benefit of the grantee and his privies.^ 1 Chapter 8. « lb. « lb. * Chapter 9. » lb. • Chapter 10. » lb. » lb. • Chapter 11. INSTITUTES. 19 By the early common law the feoffment, fine, common recov- ery, and lease possessed the efficacy of actually passing and transmitting all future estatesi^ But in conveyances of the present day this result is not so fully accomplished, except perhaps in the case of leases. The rule in the case of leases by deed is that where no inter- est passes, by reason of the fact that the grantor possesses none, an estoppel arises in relation to any future estate acquired by him, and the estate inures to the grantee; but if an interest passed by the lease, no estoppel will arise in relation to future estates, and the lessor in such cases may set up the new interest and eject the lessee.^ In modem times the doctrine that after-acquired interests inure to the grantee of one whose actual title was not sufficient for his grant, holds good even without a warranty, provided it appear from the deed itself that the grantor intended to convey and the grantee expected to receive a particular estate greater than the grantor possessed.^ In case a warranty is inserted, the effect upon future estates acquired by the grantor will depend upon the nature of the grant and of the warranty.^ In some states, for example, it is held that the warranty cannot enlarge the estate granted ; and hence, that in a quitclaim of the grantor^s right, title, and interest, with general warranty, the grantor will not be precluded from setting up against his grantee any subsequently acquired estate.'^ But in other states it is held that the warranty may be more extensive in operation than the grant.^ The estoppel^ however, in these cases is a mere rebutter, given to prevent circuity of action, and arises from the warranty. If it were not permitted, and the grantor were allowed to recover the land from the grantee upon acquiring the future interest, the grantee would in turn be entitled to recover the value of the land from the grantor by an action upon the warranty. There has been much controversy whether the general war- 1 Chapter 11. « lb. « lb. * lb. » lb. • lb. 20 INTRODUCTION. ranty in a grant in fee operates directly to transmit future interests, so as to defeat the claim of an innocent purchaser for value after title acquired, in a ^contest with the first grantee. The true rule seems to depend on the situation of the grantor when he made the first grant ; if he had possession and trans- ferred it, the tide of the first grantee should prevail ; but on the contrary if the grantor, not having possession when he executed the first deed, had possession when he made the second convey- ance, the second grantee should prevail.^ The last rule which we notice under estoppels by deed is that concerning the release of dower. By this act of releasing dower, the widow of the grantor is estopped to set up any claim of dower in the premises granted.^ But this estoppel does not arise without a proper release, even though the wife unite with her husband in the granting part of the deed.^ It is immaterial, however, whether the release is made in the same deed with the hiisband's, or in a separate deed, and at a different time.^ And it seems that a married woman who releases dower in a deed made in fraud of her husband's creditors, is estopped to claim dower against a purchaser for a valuable consideration from the grantee* This brings us to the third division of estoppel, to vdt, estoppel in pais, ancient in name, but in its present manifestations of so recent growth, that^'to call it modern would scarcely teU the truth ; it is still taking on new forms, from time to time. We have divided this subject into Estoppel by Contract, and Estoppel by Conduct. Under the first head we have two classes of cases : first, a class in which the estoppel arises by reason of the fact that the parties to the contract have actually or virtually agreed to treat some fact as settled specifically ; secondly, a class in which the estoppel arises upon the legal effect of the perform- ance of the contract Under the first class we have (inter alia) for particular con- 1 Chapter 11. « Chapter 12. « lb. * lb. » lb. INSTITUTES. 21 sideration, the right of a corporation to defeat its contracts by showing that they are beyond its powers, in regard to which the general rule is that if the contract was wholly ultra vires, the corporation cannot be estopped to show the fact ; whereas, if it had power to make the contract^ but some unauthorized act was done by it in the transaction, or some requirement of the law was omitted, without the knowledge of the other party, an estoppel to set up the fact may arise.^ For further considemtion under this class we have the rule that acknowledgment of receipt of consideration in a written contract, even under seal, is not conclusive in ordinary cases ;^ also that the ordinary acknowledgment of receipt of a commodity in a bill of lading is not conclusive.^ But the acknowledgment in either case may be- come binding in favor of a third person properly acting upon it> Acceptance of a bill of exchange is a conclusive admission of the genuineness of the drawer's signature, at least in favor of a bona fide holder for value who has taken the bill after the act of acceptanca^ And the indorsement of a bill or note pre- cludes the party from denying the genuineness of any of the prior signatures.^ Acceptance, however, does not preclude the acceptor ordina- rily from denying the genuineness of any other signature than that of the drawer, not even that of the payee, though it may have been upon the paper when it was accepted.^ But if the drawer put the bill into circulation bearing a forged indorse- ment of the payee, or bearing the name of a fictitious payee indorsed in the drawer^s hand, the acceptor will not be per- mitted to escape liability by alleging that his admission extends only to the signature of the drawer.^ This admission of genuine- ness extends only to the signature itself, and does not embrace the handwriting of the body of the bill ; the party may show that there has been a forgery in this part of the paper.^ An exception has been made to the rule that an acceptor 1 Chapter 14. « Chapter 15. • lb. * lb. » Chapter 1«. • Ih. ' lb. 8 lb. • lb. 22 INTRODUCTION. may not dispute the handwriting of his correspondent, the drawer, where the holder has taken the bill before acceptance ; in such a case it is said that the acceptor may allege that the drawing is a forgery, if the forgeiy be discovered within a rea- sonable tima^ This doctrine puts the rule strictly upon grounds of estoppel. And the same principle is declared to prevail when the duty of inquiry rests upon the holder.* It is held too that one who receives as genuine, from an innocent party, paper purporting to be his own, which, however, has in fact been forged, will not be permitted upon a late dis- covery of the forgery to shift the loss upon the other party.* It has been held that a person selling commercial paper as a chattel does not warrant its genuineness ; but a contrary doc- trine has been maintained with convincing force, and the weight of authority is that way * The execution of a negotiable promissory note payable to a party named, amounts to a conclusive admission of the present capacity of the payee to indorse the paper; and the same is true of the acceptance of a bill jof that character.^ But the admission extends only to the payee's capacity at the time the paper was made or accepted.^ So too by indorsing commercial paper the party conclusively admits the capacity of all prior parties to the security.^ Whether the certification of a bank check as ' good,' by the teller or cashier of a bank, operates to preclude the bank from showing that the drawer had no funds on deposit at the time has been a subject of conflicting opinion. The doctrine held in New York and elsewhere is that the correctness of the certifi- cate id a matter which the certifying bank has the means of knowing, and is bound to state correctly ; and that if the pre- senting party relies upon its accuracy, and is caused to forego a remedy, the certifying bank will be held to its statement® And though the authority of the teller or cashier be expressly 1 Chapter 16. « lb. « lb. « lb. » lb. • lb. ' lb. • lb. INSTITUTES. 28 limited, to the knowledge of the holder of the paper, j^ certify- ing in case of funds, the existence of funds is treated as an external fact which the holder is not bound to ascertain.^ In Massachusetts, however, it has been held that the certification of checks is not within the inherent powers of the teller so as to bind the bank to pay the amount.^ The transfer of a negotiable bill or note by an indorser, after his liability has been fixed, amounts to a representation of his liability, and estops the party from alleging a want of demand and notice after the transfer.* Under the second class, where the estoppel arises upon the le- gal effect of the contract, we have a subject denominated ' Estop- pel arising from taking Possession ; ' the most important branch of which is the estoppel of a tenant to deny his landlord's title. The tenant's estoppel of the present day is of modem origin, and rests upon a ground quite different from that of the estoppel as known to former times. In the time of Coke, and afterwards, the estoppel arose only in the case of a sealed lease, and then only against the party sealing ; so that there was no conclusion npon the tenant in the case of a deed-poll or verbal lease.* At the present day, however, the estoppel arises by reason of per- missive possession, and lasts until a surrender. It is therefore immaterial whether the lease be under seal or in parol. The seal is no longer held the foundation of the estoppel.^ As the relation of landlord and tenant is one of contract, it follows that the same rules prevail in relation to the competency of parties as in the case of estoppels by deed. Like other con- tracts a lease binds only parties sui juris ; hence persons under disability, not being bound by the contract, cannot be estopped to deny its force.® The doctrine of privity prevails here also.; and all persons claiming under the tenant are equally estopped to deny the title of the original lessor.^ 1 Chapter 16. « lb. « lb. * Chapter 17. •lb. Mb. "I lb. 24 INTRODUCTION. But w^e a teaant is ordinarily estopped to deny his land- lord's title, whether by setting up an outstanding title or in any other way, the rule has several qualifications. One of these arises where a person in possession has made an acknowledg- ment of tenancy through mistake or through the fraud of the lessor ; in such a case the estoppel is removed by proof of the facts.^ And proof may always be given of the circumstances under which a tenancy or an attornment was made.^ Another important qualification of the rule is that the tenant may always show that his landlord's title has expired.^ This may be done, for example, by showing that the tenant has been evicted by title paramount* And according to the more gen- eral doctrine in America, it is sufficient to show a constructive eviction.* It has been a matter of conflict among the authorities whether the tenant may contest the title of his lessor by merely showing that he was already in possession of the premises when he took the lease ; and although it has been maintained with great force that there is no estoppel in such a case, the weight of authority is the other way.^ The estoppel may also be removed by disclaimer brought to the notice of the landlord. By such an act the title of the tenant becomes adverse ; and the lessor may eject him at once from the premises. And if he fail to do so before the period of limitation has expired, the tenant may then set up his title acquired by adverse possession^ The same doctrine applies to the case of mortgagors in possession, trustees, and persons in the like situations.^ The tenant may also purchase the property of his landlord, and thus extinguish the tenancy.® But if he should be bound to pay taxes and neglect to do so, he could not buy in the title at tax sale and set it up against the lessor.^^ The rule is subject to the further qualification, that the tenant 1 Chapter 17. « lb. « lb. < lb. » lb. • lb. T lb. 8 IK » lb. w lb. INSTITUTES. 26 may show that he was let into possession under a title from which the landlord's title was derived.^ He may also show that one to whom he has paid rent under an attornment has no derivative title from the lessor.* When, however, none of these exceptions are available to the tenant, the estoppel will ordinarily prevail, even though the ten- ancy be created by a deed which may show that the landlord possessed no legal estate in the premises.' And the estoppel prevails against one in possession of premises under a mere license.^ It has also been held to arise where the tenancy has been created by operation of law.*^ A relation similar to that of landlord and tenant is held, in equity, to exist between the vendor of real estate and the purchaser, before the payment of the purchase-money ; in such a case the purchaser will not be permitted to escape payment by disputing the title of the vendor. So of one entering under a contract for the purchase of land.® The relation of bailor and bailee gives rise to an estoppel like that in tenancy.^ The general rule is that one who has received property from another as his bailee, agent, or servant, must restore the same before he will be permitted to dispute the former^s title to it. But the bailee has no better title than his bailor, and consequently if a person entitled to the property as against the bailor claims it, the bailee will have no defence against him ; and in such a case, in an action by the bailor, the bailee may set up the jus tertii.' The estoppel ceases when the bailment upon which it is founded is determined by what is equivalent to an eviction by title paramount^ It is not enough that the bailee has become aware of the title of a third person ; nor is it enough that an adverse claim is made, so that he may be entitled to relief under an interpleader. The bailee can only set up the title of another against his bailor when he acts upon the asserted right, title, and authority of that person.^ 1 Chapter 17. « lb. « lb. * lb. » lb. Mb. » lb. Mb. • lb. w lb. 26 INTRODUCTION. A similar rule applies to the case of assignees and licensees of patents, and persons in employment generally. Persons who have acted under a patent and received profits from its use, will not be permitted to deny the validity of the patent in an action by the patentee to obtain an account.^ The princi- ple is also seen in the case of an agents who, having collected a debt for his principal, must pay the money over to his prin- cipal regardless of the question whether the debt was legally due.^ Executors and administrators also are estopped to set up adverse claims to the property of the estate which has come into their possession ; but, in cases of mistake, they may amend their inventories and leave out property which had been em- braced therein and recognized as property of the estate, if no prejudice will result to the parties in interest^ In like manner devisees for life will be estopped by taking possession from saying that the testator h£ul no sufficient estate to create the interest* This brings us to the division called Estoppel by Conduct, in which the estoppel may arise without regard to the existence of any contract between the parties. Several classes of cases fall under this head, the typical and most important class being estoppel arising from misrepresentation. The general rule in regard to that is, that where a person by his words or conduct causes another to believe in the existence of a certain state of things, and induces him to act upon that belief so as to change his position, he will be estopped to aver against the latter a different state of things.^ In order to this estoppel it will be necessary that the following facts actually or virtually concur: 1. There must have been a false representation concerning ma- terial facts. 2. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that it should be acted 1 Chapter 17. « lb. « lb. * lb. » Chapter 18. INSTITUTES. 27 iipoit 5. It must have been acted upon to the damage of the party acting.^ In all ordinary cases the representation must have reference to a present or past state of facts only ; it should not look to future events or to pure matters of law.^ It must have been plain and certain and such as would naturally lead to the action taken.^ This estoppel may arise from misleading passive conduct or concealment as well as from active conduct.^ A party who negligently stands by and allows another to contract on the faith and understanding of a fact which he can contradict may not afterwards dispute the fact in an action between himself and the person whom he has assisted in deceiving. Or as the principle has been forcibly stated in the Court of Chancery, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to keep silent.^ If, however, the party's silence be not the result of intended fraud or of misleading negligence, his conduct will not raise an estoppel ; ® and forgetfulness of one's rights has sometimes been held excusable.^ But such a case should not be the result of gross negligence.® In this case of estoppel by conduct only parties and their privies are bound by the representation, and only those to whom the representation is made, and their privies, may take advantage of the representation.® It has been said that the doctrine of estoppel in pais has no application to married women or to infants ; "^^ but the weight of authority seems to favor the doctrine that both infants of years of discretion and married women may preclude themselves from denying the truth of their representations in the case of pure torts. Where, however, the conduct -or representation is so con- nected with matter of contract that the action must ' sound in contract,' no estoppel arises.^^ J Chapter 18. « lb. Mb. * lb. » lb. • IK T ibi • lb. » lb. 10 lb. u lb. 28 INTRODUCTION. Manj cases of boundary have been decided upon the party's knowledge or ignorance of the facts represented. The rale in some states is that an untrue representation concerning the location of a boundary line, in order to estop the party mak- ing it, must have been made with knowledge of the location of the real line. When so made to and acted upon by a party ignorant of the true line, the former will not be per- mitted to deny the truth of his statement against the objec- tion of the latter.^ In other states long acquiescence in the wrong boundary line has been held sufficient* The former cases are more in accord with the nature of this estoppel.* In respect of the intention that the representation should be acted upon, the term * wilful ' was at first connected with it as though it were an essential part of the intention ; but this doc- trine was soon modified and the principle settled that, if the representation was such as to lead an intelligent person to infer an intention and it was voluntary, it is sufficient to work an estoppel.* The rule that the representation must have been acted upon, in order to the estoppel, is fundamental. It proceeds upon the ground that the party would unjustly be put to damage by al- lowing the truth of the representation to be disproved. But it has been held in cases of authority that specific proof of dam- age is not required, and that it is sufficient if it may be fairly presumed that damage did result '^ A second kind of estoppel by conduct may arise, it seems, by negligence without any representation in the proper sense of that term ; but according to the better view negligence can never generate an estoppel except where the party -to be estopped owes a duty to the party claiming an estoppel, and where, further, the negligence was in, or in immediate connec- tion with, the change of position, and the proximate cause of such change.® 1 Chapter 18. a lb. ' lb. * lb. » lb. • Chapter 19. INSTITUTES. 29 Another kind of estoppel by conduct maj arise by a party to a contract or transaction inducing the other to act in the belief that the former will waive certain rights he might other- wise maintain against the latter. This estoppel does not con- sist in misrepresentation by the party to be estopped, nor does it require that the opposite party should be ignorant of the facts. Waiver by an underwriter of the terms of an insurance contract is an example ; encouraging a licensee to expend money on one's premises in the belief that the former will thereby acquire rights or privileges is another.^ This completes estoppel proper, in substantive law, and brings us to what may be called quasi-estoppeL A party will not be permitted to assume inconsistent positions ; and where one has an election between inconsistent courses of action he will be confined to that course which he first adopts.^ Accord- ingly where a party takes a beneficial interest under a will, he will not be allowed to contest the validity of the testament' So if a person assist in procuring the passage of an uncon- stitutional act by the legislature for his own benefit, and pro- ceed to act upon it, it is held that he will not afterwards be allowed to deny its constitutionality.^ So, too, if a party bring a suit upon a contract or purchase, or with knowledge of the facts receive money upon the same, he will be held to have conclusively affirmed its validity.^ Lastly, of estoppels in the adjective law. Whether the estoppel of a deed or record should be pleaded or not to be available has been a matter of doubt at the common law ; but the prevailing and better opinion at the present time is that it is conclusive in evidence though not pleaded. This is certainly true in case the party claiming the benefit of it has had no opportunity to plead it® It is well settled at common law that the facts constituting an estoppel in pais need not be pleaded ; but there have been 1 Chapter 20. « Chapter 21. ' lb. * lb. » lb. < Chapter 22. 80 INTBODUCnON. statutory regulations upon the whole subject in some of the states.^ The proper general issue, at common law, to an action upon the judgment of a court of record is nul tiel record, both in the case of domestic judgments and of the judgments of a sister state of the Union.^ But nil debet may be pleaded to a judg- ment rendered in a foreign country.^ The practice in declar- ing upon a judgment is to allege generally that the plaintiff, by the consideration and judgment of the court, recovered the » sum mentioned; but in pleading or replying a judgment as an estoppel to an action or allegation it should be made to appear that the precise point now in question was brought in issue in the preceding action and there determined.^ In the case of judgments of foreign countries, or of inferior courts whether domestic or foreign, the jurisdiction of the court must be proved; and in all cases it must appear that the judgment was final and rendered upon the merits of the question.* The estoppel of a deed, as has been intimated, is ordinarily removed by proof that the instrument is not valid ;^ or when it is introduced in evidence in collateral matters.^ The same is true when it is encountered by another deed inconsistent with it and intended to discharge or modify it;® or if other matters appear in the instrument which explain, modify, or overturn the recital relied upon as an estoppeP The facts to be proved in order to raise an estoppel in pais by misrepresentation have already been referred to.^^ It has been held that estoppel in pais when applied to real estate is available only in equity, and not at law ; ^ but a contrary rule prevails in many states.^ Parties are not permitted to take inconsistent positions in the conduct of litigation. And the principle upon which a party is 1 Chapter 22. s Chapter 23. Mb. « lb. » lb. * Chapter 24. T lb. • lb. • lb. » Ante, p. 26. 11 Chapter 26. M lU INSTITUTES. 81 estopped by his com^e of action in the trial of a cause seems to be that a prejudice would result to the opposite party if. a change were to be allowed by the court ; where no prejudice would arise by a change of position, there is no rule of law against permitting one.^ 1 Chapter 26. PART I. BIGHTS ARISING FROM ESTOPPEL BY RECORD. a PART I. EIGHTS ARISING FROM ESTOPPEL BY RECORD. CHAPTER I. PREUMINARY VIEW: THE RECORD. We have seen that the term ' record ' signifies (1) the legis- lature's roll, (2) the judgment roll of a court of competent juris- diction ; ieuid that estoppel by record is a right conferred or fixed by record. But the record is attended with another twofold estoppel ; the roll as a memorial creates one kind of estoppel, the fact enrolled another. To the first, the roll as a memorial, attention is now directed. Of estoppel arising from legislative records it is only neces- sary to say that all persons are bound. There can be no such thing as individual parties to such records ; all the world are parties, and all are therefore bound so long as the record remains unchanged. Estoppel arising from judicial records requires closer examination. This concerns not merely record evidence arising from enrolment, but also the conclusiveness of judgments generally. Strictly speaking, this estoppel may perhaps embrace only the effect of judgments of the domestic courts technically of record; but it has in fact been expanded so as to include judgments of all courts of justice, whether of record or not of record in the technical sense, and those of other states and countries. In one respect this estoppel is like the estoppel arising from a legislative record; as a memorial simply it has conclusive 36 ESTOPPEL BT RECORD. [CHAP. I. effect against all the world. No one, whether party, privy, or stranger, is permitted to deny the fact that the proceedings narrated in the record took place,^ or the time when they purport to have taken place,^ or that the parties there named as litigants actually or constructively paiticipated in the cause, or that judgment was given as therein stated ; ^ unless in a direct proceeding instituted for the purpose of correcting or annulling the record.* So far, however, as the record purports to declare rights and duties, its material recitals ^ import absolute verity indeed, but this only, in ordinary cases, between the parties to it (including those who claim under the parties), and then only in collateral proceedings.* The rights of strangers are not affected ; strangers can neither be bound by nor take advantage of recitals in the recordJ Indeed, even between parties and privies the recitals of a judicial record of another state or country or of an inferior domestic court® in respect of jurisdiction are but prima facie evidence; and it has been adjudged in New York that the same is true in that state of recitals of jurisdictional facts of even the superior domestic courts.® On the other hand, the record of a judgment in rem (a term to be explained later), apart from findings and recitals of jurisdiction, is conclusive of the rights of all persons. 1 Reed v, Jackaon, 1 East, 855. utation, as in regard to the existence of 3 Floyd V, Ritter, 56 Ala. 856. So a ferry or a fishery, is prima facie evi- the clerk of a court may bind himself dence against strangers, but nothing in collateral proceedings by an entry more. Reed v. Jackson, 1 East, 855 ; of record concerning his own acts. Neill v. Devonshire, 8 App. Cas. 185, Thompson v. BuUding Assoc., 28 Kans. 147 ; Pirn v. Curell, 6 Mees. & W. 234 ; 209. Hemphill v. McKenna, 8 Ir. L. R. 43, * Morgan v. Muldoon, 82 Ind. 847, 51, 52; Carnarvon v, YiUebois, 18 Mees. 855 ; Scott v. Ware, 64 Ala. 174, 183 ; & W. 818. Taylor v. Means, 78 Ala. 468 ; Central ^ Perhaps an admission of record R. Co. V, Smith, 76 Ala 572, 678. might be made for the benefit of a third ^ See Rogers v. Beaachamp, 102 Ind. person, or with a view to his acting 83, 36, and Exchange Bank v. Ault, ib. upon it, so as, when materially acted 322, in regard to such proceedings. upon, to become conclusive. Dahlman ^ Stipulations filed with the record of v. Forster, 55 Wis. 882. a cause may be binding in regard to the ^ Mulligan v. Smith, 59 Oal. 206, facts recited therein as much as if they 283. were part of the very record. Stroi^ v. • Ferguson v. Crawford, 70 N. Y. Stevens Point, 62 Wis. 255. 258. See chapter 8, § 4. ® A finding of prescription or of rap- CHAP. I.] PRELIMINARY VIEW : THE RECORD. 37 The term * record/ it may be remarked, had no such sense originally as that applied to it in modern times. It did not at tii-st signify enrolment or writing of any kind ; as applied to the courts it signified proof, in manner prescribed by law, of the proceedings of the king's superior courts, which proof was furnished by witnesses bearing oral testimony of the facts. But owing to the dignity attached to the proceedings of the king's courts, and apparently to the solemn manner in which the same were proved, the * record ' of those courts (i. e. the due report of their proceedings) was held to import absolute verity ; a char- acter not, except in a partial degree, accorded to testimony concerning the proceedings of tlie inferior courts. From this circumstance it came to be said in reference to the conclusive- ness of the evidence, at least as early as the twelfth century, that only the king's courts * had record ' ; ^ an expression which in modem times, still used as then only of the superior courts, has come to mean that such courts alone have of right enrolment of their proceedings under seal. Using the term now in the modem sense, it remains to say that the record, though to be received between the parties and their privies as conclusive evidence, in proceedings not begun on the one side or the other to impeach it, may always be cor- rected, as has been intimated, by a direct proceeding instituted * History of Procednre in England, The case was an assise by writ of certi- 319. In the Dialogue of the Exchequer, orari between William de la C. and a work of the king's treasnrer, Richard, Richard de P. and Mai^ret, his wife, Bishop of London, written in the year concemingceitainlandinW., which the 1177, it is said of the Exchequer, *Ha- defendants claimed had been adjudged bet enim hoc commnne cum ipsa donii- to them in a previous trial by recogni- ni Regis Caria in qua ipse [i. e. rex] ii) tion. Whereupon ' scrutatis rotulis propria persona jnra decern it quod nee [short entries or memoranda of proceed - rccordationi nee sententife . . . licet ings of the court] compt^rtum est quod alicai contradicen*.' Stnbbs's Select predicta recognicio rite facta fuit in Charters, 176 (2d ed.). The record here Curia domini Regis et contra hiyus- referred to consisted of short tax rolls modi recognicionem sic in curia fartam made up by the fiscal officers of the non jacet inquisitio patriee ad verificau- king in the spring and fall of each year; dum contrarium. Consideratnm est the word being used in the modem quod predictum reeordum stet in suo sense of enrolment. On the ' record ' of robore, et Ricardus et Margareta sine the King's Court (the King's Bench of die.' These rolls, it may be remarked, modem times) a century later, a case were not themselves under seal, of HiclL 18 £dw. 1 may be referred to. 38 ESTOPPEL BT RECORD. [CHAP. I. for the purpose. Thus, if facts are erroneously inserted, the court may order an erasing of them or such a change as will make them conform to the truth ; and if material facts have been omitted, the court may order that they be inserted.^ Any evidence which would be proper in an ordinary proceeding for the purpose of correcting a written instrument would doubtless be admissible in such a case. But the evidence in support of the desired change in the record should be very strong. It may be observed that, before the record has been extended, the docket entries have the same force of conclusiveness as the later record. Indeed, the docket is the record until the final enrolment is made.^ In either case, however, facts that do not appear by the record, if necessary to establish the subject- matter of a finding, or the grounds upon which the judgment proceeded, may be supplied by evidence ab extra, even in a collateral proceeding ; a proceeding, that is to say, not instituted to correct or enlarge the record.* Thus far of the record as a memorial The estoppel arising . from or fixed by the fact enrolled is now to be considered. This is of far greater importance; it is the estoppel of a judgment The first inquiry now must be, what is the legal conception of a judgment ? Does a judgment necessarily create an estop- pel ? The general answer is, yes, if it results in res judicata ; no, if it does not The inquiry concerning a judgment as an estoppel turns then upon the meaning of the last-named term ; to which attention will now be directed. 1 Balch V. Shaw, 7 Gush. 282 ; Wil- « Sturtevant v. RaDdall, 68 Maine, lard «. Whitney, 49 Maine, 285. See 149 ; Chase ». Walker, 26 Maine, 555 ; Rogers v. Beauchamp, 102 Ind. 33 ; £x- Dunlap v. Glidden, 84 Maine, 517 : change Bank v. Ault, ib. 822. Parker v. Thompson, 8 Pick. 429, 484 ; « Read v, Sutton, 2 Cush. 115. See Packet Co. v. Sickles, 6 WalL 580. Sayles v. Briggs, 4 Met 421, 424. See post, p. 87. SECT. I. J PREUMINABT VIEW : RES JUDICATA. 89 CHAPTER II. PRELIMINARY VIEW : RES JUDICATA.^ § 1. MeaniTig and Use of the Term, In the preceding chapter we have spoken of the effect of record evidence in its general features ; in its testimony, that is to say, to any and to all of the enrolled proceedings of the superior courts of justice. The doctrine of estoppel by record, however, is chiefly concerned with the enrolment or record of judgments in litigated causes, and the narrated proceedings leading as necessary preliminaries to them ; and that doctrine, as may be inferred from what has heretofore been stated, bears alone upon the conclusiveness of the record in litigations not instituted for the purpose of annulling or modifying the witness of the enrolment In other words, using the technical language of the books, the record of a judgment is conclusive evidence only in collateral proceedings. It will not be necessary to speak further of the record. The great question is, what constitutes a judgment, and what mean- ing and modification attach to the doctrine of estoppel as applied thereto. Now the fundamental principle concerning judgments is that an issue once determined by a court of competent juris- diction may be relied upon as an effectual bar to any further dispute upon the same matter, whether by the parties to the litigation or by those who, termed privies, claim under them ; this conclusiveness including of course as well tlie law ^ as the facts involved in the casa We speak of this as fundamental ^ The expression ' res of^judicata,' always, the latter with few exceptions, sometimes nsed even by reputable See Dig.. 44, 2. writers, is Latin made to order. The ' South Alabama R. Co. v. Henlein, Roman jurists, and their successors in 56 Ala. 368; Imrie v. Castrique, 8 Com. Europe, say 'res judicata,' — the former 6. n. 8. 405 ; s. c. L. R. 4 H. L. 414 ; Case V, Beauregard, 101 U. S. 688. 40 ESTOPPEL BY BECOBD. [CHAP. II. because it is the very object of the institution of courts to put an end to disputes. 'Interest reipublicse ut litium finis sit.' This is of course true under every system of justice ; it is pecul- iar to none. It would therefore be wide of the truth to speak of the doctrine of judgments in the English law as derived from the principles of any other system of law. On the other hand, it would be arrogant and false to assert that the principles of the English law in regard to the eflTect of judgments had been wholly worked out from within, regardless of that great system of law which Bome developed and gave for an inheritance to most of the continental nations of Europe, and for a light to all the world. From Eome our law has at least borrowed the con- venient term 'i*es judicata'; to Bome let us go and see what that term signified among those who invented it. In its most obvious and general meaning the term ' res judi- cata ' signified at Bome, as it signifies in England and in America, that a matter in dispute had been considered and settled by a competent court of justice. The term had, however, a special meaning, which turned upon what we should call a point in pleading. In the time of Gains, the second century, a distinc- tion existed between the effect of judgments rendered under the native system of justice and judgments rendered in the praetor's courts. In contests tried under the former system, judgment for the plaintiff in a personal action had the effect, by way of * novation,' of terminating the original obligation of the defendant; merging it, that is to say, as in the English law, in the higher obligation of a judgment debt. The result of this was that if the same plaintiff for any reason afterwards brought another action upon the same demand, a simple denial, such as might be called a plea of the general issue in the English law, was sufficient for the defendant. Then, when, the trial having come to an issue, the case came to be heard as we should say, the defendant in answer to the plaintiff's evidence proved the former judgment; and this, disproving the existence of the obligation or liability alleged by the plaintiff, ended the cause in favor of the defendant. The proceeding in which such a course of things took place was called 'judicium legitimura.' If the litigation occurred in the praetor's court, the effect of judg- SECT. I.] PREUMINABY VIEW : RES JUDICATA. 41 ment for the plaintifif was like that of judgment rendered in a country foreign to Great Britain or to the United States. Being a 'foreign judgment' no novation was deemed to have been created when the original demand was again sued upon (iti Borne, it seems). The original obligation or liability therefore continuing to exist notwithstanding the judgment, it was neces- sary by some plea in avoidance to show that the plaintiff was not entitled to enforce his demand. For this purpose the de- fendant entered a plea of the former judgment, or, as it was called by the Boman jurists, an ' exceptio rei judicatse.* * The proceeding in which this took place was called 'judicium im- perio continens.' By the time of Justinian, the sixth century, this distinction had ceased to prevail, the rule governing in the praetor's court having become universal No novation occurred even of judgments rendered in the courts of the city, and a special * plea ' of the former judgment was therefore the only escape from a second judgment upon the same cause of action ; unless of course some new defence, such as payment, had arisen. Concerning the nature of the judgment behii^d which the defendant might shield himself, it was necessary in the Boman, as it must be in every other well-founded, system of law that the subject-matter general or special of the former litigation, and the parties thereto, should be the same as in the new action, except (as for the matter of parties) that the judgment was equally available by or against those who had succeeded as privies to the rights of the original parties. The parties^should also have litigated in the same character in both actions.^ The conclusiveness of the judgment probably extended to every point necessarily decided ; and it was not necessary that the former cause of action should have been the same as the second except when that cause of action was itself the subject of dis- pute. It was enough that the point in dispute was the same in the two actions.* 1 The exceptio, it may be observed, 476, 6th Eng. ed. Upon the subject of was unlike our plea in confession and the text see Gaii Inst. iii. 181 ; ib. iv. avoidance, in that it did not confess i06, 107 ; Inst. Just. iv. 13, 5, and anything, it only avoided ; and the notes by Sandars. plaintiff was still put to the proof of s j)ig. 44, 2, 14. hie demand. Sandars, Justinian, p. * See Dig. 44, 2, 7 ; ib. 44, 2, 21. 42 ESTOPPEL BY RECOED. [CHAP. II. The benefit of judgments was equally available to plaintiflF and to defendant. If the plaintiif had obtained judgment, he could bring an action thereon, — an actio judicati, the conclusive- ness of which the defendant could not deny ; if judgment had gone for the defendant, he could avail himself of the same as a conclusive determination of the question in his favor. And we have already spoken of the defence to a second suit upon the same cause of action after judgment in favor of the plaintiff. In the English law the doctrine of res judicata depends for its effect, first, upon the nature of the proceeding in which the matter became res judicata, to wit, whether it was an action in rem or an action in personam ; this is the great and most im- portant division of the subject, and it will presently receive an explanation. Its effect depends, secondly, upon the forum in which the cause was tried, to wit, whether it was tried in the courts of the state in which it is interposed as an estoppel, or in a foreign court In strict law the doctrine is applicable only to the judgments of domestic courts ; but from motives of policy or of 'comity' it has been extended to the judgments of foreign courts of civilized countries,^ with certain limitations which wiU appear in the chapters relating to foreign judgments. The term ' in rem ' had in the Boman law, from which the English law has of course borrowed it, a double signification, one as applied to the nature of a certain class of rights, the other as applied to the actions by which those rights were enforced. A right was a right in rem when it availed against all the world, thus corresponding generally to that sort of right in the English law the breach of which constitutes a tort. It was distinguished from a right in personam in that it might be infringed by any- body. The term is frequently used in the same sense by writers on the English law. Thus, a right of property is said to be a right in rem, for it avails against all the world ; whoever infringes it is liable, and the right is not defined in regard to the party who may be sued until it is infringed. The term was used in the Roman law both in a literal sense, to denote a proceeding to obtain possession of a tangible thing, as a piece of land or a horse, and 1 In one case the doctrine was ex- giera. The Helena, 4 Ch. Rob. 8. Pel tended to a decree pronounced in Al- Sir William Scott. SECT. I.] PRELIMINARY VIEW : RES JUDICATA. 48 also in an artificial sense, to indicate a proceeding to obtain or confirm an incorporeal rights as an easement. Thus, Gains says : ' In rem actio est, cum aut corporalem rem intendimus nostram esse, aut jus aliquod nobis competere, velut utendi, aut utendi fruendi, eundi, agendi, aquamve ducendi, vel altius toUendi, vel prospiciendi/ ^ Ulpian's definition is this : ' In rem actio est per quam rem nostram quae ab alio possidetur petimus; et semper adversus eum est qui rem possidet/* On the other hand, a right in personam was, as it is in the English law, a right in virtue of which a certain person was bound towards an- other certain person to do or not to do some specified thing, in such manner that he against whom the action would be brought, in case of non-fulfilment of the obligation, was known and determined from the moment of the creation of the obligation.* In regard to the effect of an adjudication in rem the rule, as we should expect from what has been said above, commonly at all events was ' res judicata inter partes jus facit ;' * not, it is to be observed, inter omnes, but inter partes.' * There would seem, then, to be no difference in this respect between a proceeding in rem and one in personam ; neither binding any but parties to the litigation, and their successors in right. Certain kinds of judgment in the Eoman law did, however, bind third persons, though not upon any distinction between judgments in rem and judgments' in personam;^ and the same fact reappears in modern Eoman law. In a recent work*^ it is said that while generally speaking a judgment affects only the parties to the suit and their successors, it does extend *to third parties exceptionally, as for instance in the case of the invalidity of a testament, in an indictment, in a judgment upon the status of a person, in judgments in cases of real servitudes, in joint ownerships, and in other similar instances.' '^ Gaiua, iv. 8. ' Croudsmit, Roman Law, p. 247. 2 See Tomkms & Lemon, Gains, p. * Tomkins & Lemon, Gains, p. 601. See ak» Inst. iv. 6, 1, Sandars ; 275. Bracton, 102. The tenn * in rem ' indi- * Keller, Romische Civil Process, cated, not the object, but the nature of § 73, 4th ed. a demand ; and there could be a pactum ^ Tomkins & Jencken, Mod. Rom. in rem as well as in personam. Goud- Law, p. 94. emit, Roman Law, p. 248, by Gould. 44 ESTOPPEL BY RECORD. [CHAP. II. Actions in rem, in the Boman law, corresponded to rights in rem, and actions in personam to rights in personam. To this, the English law, while following the Boman nomenclature, has never been conformable. Thus, our great Bomanizing writer, Bracton, could merely say, that that only was an action in rem the sole object of which was to obtain possession of a res ; when the proceeding was in the disjunctive for possession or damages, it was an action not in rem but in personam. And those actions only were considered as in rem which were brought for the recovery of land. Actions in personam (besides the case mentioned) arose out of contract or tort.^ Whether there was any such diflference in the time of our older writers as now prevails between judgments in rem and judgments in personam in their effect upon third persons does not clearly appear ; probably there was not. There was a class of proceedings, however, which would now be called proceed- ings in rem that led to judgments binding inter omnes. Thus Bracton says : ' Effectus vero legitimationis probatae hie est, quod cum semel probata fuerit et judicium pro tali reddatur in Curia Begis semper q;itoad omnes legitimus erit, nisi in proba- tione intervenerit fraus.' ^ Again, Littleton says : ' Where a man is outlawed upon an action of debt or trespass, or upon any other action or indictment, the tenant or the defendant may show the whole matter of record and the outlawry, and demand judgment if he [the demandant or plaintiff] shall be answered.' ^ Lastly, Lord Coke says : ' Where the record of the estoppel doth run to the disability or legitimation of the person, there all strangers shall take benefit of that record ; as outlawry, excom- menqement,* profession, attainder of prsemunire, of felony, etc., bastardy, mulierty, and shall conclude the party though they be strangers to the record. But of a record concerning the name of the person, quality, or addition, no stranger shall take advantage, because he shall not be bound by it.' ^ Confusion was the inevitable result of adapting the Boman 1 Bracton, pp. 102, 102 b. Bracton See Keller, Romische Civil Process, § 73, fashioned and fixed the nomenclature. 4th ed. « Bracton, p. 420, § 17. The prin- « Litt. Ten. §197; Coke, Litt. 128 a. ciple is probably taken from the Roman * Excommunication, law ; Bracton no doubt found it there. ^ Coke, Litt. 352 b. SECT. L] PBELIMINART VIEW : RES JUDICATA. 45 nomeDclature.to usages and conceptions at variance with those of Kome. It began at the outset, when the tenn * real actions ' was applied solely to actions for the recovery of land ; ^ it grew when later, in recent times, writers and judges came to speak of proceedings in attachment as proceedings in rem in regard to the property taken; it was complete, or at least the Eoman meaning was lost, when without any clear discrimination, and upon discordant views, sentences in prize and revenue causes, decrees in probate and divorce cases, judgments in questions of pedigree and legitimacy,^ and orders relating to the settlement of paupers were lumped together and treated as adjudications in rem.* One thing has been agreed with regard to these cases, and that is, that for some purposes, not well defined, the judgment is binding not merely inter partes but inter omnes. With T^ard to such purposes, and not upon the distinction of the Soman law, judgments conclusive generally are said to be in rem, according to the English and American law ; while those which bind only the defined parties to a cause (including those who derive title under them) are in personam, though by the Eoman law they might belong to the other class. The difficulty heretofore has mainly been to asceitain some principle upon which to rest this class of judgments, so as to determine what cases fall within it. It has often been said that judgments in rem bind all persons, because all persons are deemed to be parties to them ;^ thus eliminating the supposed distinction, to a great extent, between judgments in rem and judgments in personam. The statement is true in a geneml 1 Upon this subject see a leanied pauper, and probate cases, does not pro- article in the Law Quarterly Review for fess to be complete. October, 18S8, entitled ' The Terms * The words as to an action being in Real and Personal in English Law.' ' rem or in personam, and the common * In Pittapur v. Gam, L. R. 12 Ind. statement that the one is binding on App. 16, an attempt was made to raise third persons, and the other not, are apt a question of blood relationship, decided to be used by English [and by American] in a former and different kind of suit, lawj^ers without attaching any very deii- between the same parties, but without nite meaning to those phrases.* Black* Bucceas. bum, J. in Castrique v. Imrie, L. R. 4 • The category in De Mora v. Concha, H. L. 414, 429. d9 Ch. D. 268, C. A., prize, revenue, ^ See e. g. Croudson v, Leonard, 4 Granch, 484. 46 ESTOPPEL BY RECORD. [CHAP. II. seuse in regard to prize, revenue, probate, and some other cases ; at these all persons having civil rights depending upon the questions involved, and having a right to be heard in regard to them, are by some sort of public monition or notice warned to appear and present their claims. And this is all . that the nature of the case permits; hence the judgment may well conclude all such persons, and probably all others. Still another ground has been taken with regard to prize cases, to wit, the propriety of leaving the cognizance of such cases to courts having the more appropriate jurisdiction to try them. It is said that there would be 'very great inconvenience, amounting nearly to an impossibility, of fully investigating such causes in a court of common law ; ' and there would be an * im- propriety of revising the decisions of the maritime courts of other nations, whose jurisdiction is co-ordinate throughout the world.* ^ It might also be said with regard to prize and revenue cases that the question raised is an impersonal one ; rights of owner- ship, or other property rights, have ordinarily no bearing upon the proceedings. The question to be decided is simply this, Is the property forfeit ?2 Again, it is often said that judgments in rem determine status ; and this is sometimes put, apparently, by way of ex- planation of their broadly conclusive eflFect.' But however con- venient and useful the term, it is doubtful whether saying that a particular judgment has decided a status materially helps out any difficulty. Besides, if the term is borrowed from the Boman jurists, a new sense is given to it. Judgment of status by the Boman law was a judgment, it seems, relating to the quality of citizenship, or the want of it, as a g. freedom, slavery, marriage. To apply the term that way * would be useful even 1 The Mary, 9 Cranch, 126, 145, 414, 434; andtheaiigumentsin De Mora quoted by Holmes, J. in Brigham v. v. Concha, 29 Ch. D. 268 ; s. c. nom. Fayerweather, 140 Mass. 411, 414. See Concha v. Concha, 11 App. Gas. 641. also the grounds stated in Baxter v. New ^ See post, p. 232, note 1. England Ins. Co., 6 Mass. 277, 300 ; * See e. g. Hood v. Hood, 110 Mass. Robinson t;. Jones, 8 Mass. 536, 540 ; 463, 465, divorce case. Lothian v. Henderson, 3 Bos. k P. 499, ^ See Mark by, Elements of Law, 545 ; Castriqne v. Imrie, L. R. 4 H. L. §§ 168-180, 3d ed. SECT. I.] PRELIMINABT VIEW : BES JUDICATA. 47 in the non-Boinan conception of judgments in rem of the English law ; for as the juridical condition of a human being within the state is a matter in which he himself is chiefly concerned, a direct adjudication thereon, in a cause to which he is actually a party, and in which his condition is the very ques- tion to be tried,^ may justly bind all men. Upon this ground the general conclusiveness of decrees in regard to pedigree,^ or legitimacy,' might well be explained ; so of decrees of divorce, though only husband and wife could be parties.^ Perhaps this would sufficiently explain the pauper settlement cases also. It will help, however, to an understanding of this broadly con- clusive character of judgments in rem to look to the purposes for which they are thus conclusive ; and to this, searching examination has recently been directed both in England and in the United States.^ As was stated above, the purposes for which a judgment in rem may be used inter omnes have not heretofore been clearly defined. It has been supposed, to a greater or less extent,** that not only judgments in prize causes, but judgments in revenue, settlement, divorce, and probate pro- ceedings carried with their own general conclusiveness the same effect in respect of their grounds and any necessary findings in the cause. This, however, has now become extremely doubtful in England,^ and in Massachusetts has, in regard to probate cases at least, been denied altogether.' Such grounds and find- ings will, if the cases referred to point aright, bind at most only the parties litigant and their privies; only findings and grounds of decision in prize causes bind inter omnes like the judgment itself. Indeed, it has been said that findings even in prize cases bind only those who were entitled to be heard ;^ at all 1 Oomp. Williams v. Williams, 6S v. Concha, 11 App. Gas. 541 ; Brig- Wis. 58. bam v. Fayerweather, 140 Mass. 411, * Ennis v. Smith, 14 How. 400. Holmes, J. * Banting V. l^epingwell, 4Coke, 29; * Upon authority of such cases as Onchess of Kingston's Case, Everest k Hart v. McNaniara, 4 Price, 154, note. Strode* 424 ; Bracton, 420; ante, p. 44. Magoun v. New Eng. Ins. Co., 1 Story, ^ See, however, Williams O.Williams, 157, and Bouchier v. Taylor, 4 Bro. 68 Wis. 58, under special laws in regard Pari. Cas. 708. to divorce. ^ De Mora v. Concha, supra. * Dc Mora v. Concha, 29 Ch. D. 268, • Brigham v, Fayerweather, supra. C. A.; affirmed on appeal nom. Concha * The Mary, 9 Cranch, 126, 146 ; 48 ESTOPPEL BY BECOBD. [CHAP. II. events, the case of prize appears to be exceptional.^ It has its peculiar effect, it has been strongly said, because the sovereign has declared that it should be so.^ The judgment itself, however, with all that is done in virtue of it, is £^reed to be binding inter omne^; and there is no diffi- culty in understanding this in regard to any of the cases a]x)ve mentioned, to which others, indeed, might be added. One reason has already been foreshadowed ; if all who have a right to ap- pear and be heard in a cause have been duly made parties, the judgment establishes a perfect and complete right against all, as much as would a conveyatice of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, binds third persons in that way ; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it, and that the question should be determined without coUusion. Judgment that A is debtor of B is an exam- ple.' Such a judgment would not, however, profess to establish rights in respect of its grounds or of preliminary findings in the cause ; in regard to these it is enough that the decision is bind- ing inter partes. Indeed, the difference between judgments in rem and judgments in personam in our law, as regards their effect, appears at bottom to be only a difference of degree. In the case of proceedings leading to judgment in personam, all parties interested are generally present or duly represented in point of fact, or may well be, for they are clearly defined. In the case of proceedings leading to judgment in rem the parties Salem v. Eastern Railroad, 98 Mass. Bngham v. Fayerweather, 140 Mass. 431, 439; Brigham v. Fayerweather, 411, 413; Pickett v. Pipkin, 64 Ala. 140 Mass. 411, 413, Holmes, J. Comp. 820 ; post, chapter 3. also the New York cases, holding that Still, the judgment in personam is the facts upon which the adjudication not to be considered, for such a purpose, proceeds are but prima facie evidence in as a judgment in rem. The latter sort other cases. Ocean Ins. Co. v. Francis, of judgment binds all interested persons 2 Wend. 64 ; s. c. 6 Cowen, 404 ; Rad- everywhere, by force of the monition ; cliff V. United States Ins. Co., 9 Johns, while the former can bind only those 277 ; post, chapter 5. interested persons who are defined par- 1 De Mora r. Couch.% 29 Ch. D. ties, and only citizens or resid^'nta of 268 ; Brigham v, Fayerweather, 140 the State and others served with process Muss. 411. therein can be such parties. Kurther in ^ Mr. Justice Holmes in Brigham v. regard to judgments in rem, see chapters Fayerweather, supra. 4 and 5. > Gandee v. Lord, ^ Comst, 269 ; SECT. I.] PREUMINABY VIEW : RES JUDICATA. 49 are not defined, and it is not always true that they are present or represented in point of fact ; it is contemplated that they are in point of law because on the whole it is deemed that public policy so requires. A word more in regard to judgments in rem : It may be that a judgment is made conclusive upon all persons, by virtue of local law, which would not be so in other* countries. In such a case it is clear that so far as the citizens, and probably residents,^ of the state in which the law in question prevails are concerned, judgments there rendered* should be treated as binding inter oinnes everywhere; for citizens, and residents to some extent, are bound by the laws of such state.^ Again, it may be that a judgment rendered abroad operates in rem not by virtue of mere local law but under a general system of law, as e. g. one per- vading the Latin states generally, which judgment would not so operate in a contest governed by the laws of England or of America In such a case also the judgment should be treated everywhere as binding inter omnes ; and that too, it seems, upon non-residents, assuming of course that proper notice or monition according to such foreign system of law has been had.* Some further remark should be made in this connection about attachment in suits in personam. Attachment in such suits is often spoken of as acting in rem ; but that does not mean that the title to the property attached is adjudicated so as to bind all persons. Attachment is simply resorted to in order to take the place of notice or appearance, in other words, merely to give the court jurisdiction ; ^ it is a means, and not an end. The 1 Comp. Konsillon v, RousiUon, 14 Roman law, was a proceedini; in rem, Ch. D. 351 ; Schibsby v. Westenbolz, thougb not so recognized by tbe law of L. K. 6 Q. B. 155. England, must be so treateil there. * And possibly rendered anywhere, Comp. The Mecca, 6 P. D. 106. in causes between the citizens of such ' This is all that is meant by Coo))er state. V, Reynolds, 10 Wall. 308. It must be * Cases in note 1, supra ; Hood v. observed that the court in that case is Hood, 11 Allen, 196. s^ieaking only of the means used to * In Castrique v. Imrie, L. R. 4 H. obtain jurisdiction ; in which respect L. 414, Lord Chelmsford said that the the proceeding by attachment is in the fole was that a proceeding in a foreign nature of the true proceeding in- rem. court to enforce a maritime lien, which See also Pennoyer v. Neff, 95 U. S. by the law of that foreign country, and 714; Easterly v, Goodwin, 35 Conn. of all foreign codes founded upon the 273. 4 50 ESTOPPEL BY RECORD. [CHAP. n. object of the litigation is simply to declare a judgment against the person of the defendant, and not to determine any question in regard to the liability of the property to forfeiture, such as' would arise in a proper proceeding in rem. Sir John Jervis, in pronouncing judgment in The Bold Buccleugh,^ thus distin- guished the case of attachment: 'The foreign attachment is. founded upon a plaint against the principal debtor, and must be returned nihil before any step can be taken against the garnishee ; the proceeding in rem, whether for wages, salvage, collision, or on bottomry, goes against the ship in the first instance. In the former case the proceedings are in personam ; in the latter they are in rem. The attachment, like a common- law distringas, is merely for the purpose of compelling an appearance.' It may, however, be said that an order of sale of perishable goods levied on by attachment operates as a proceeding in rem, since the sale gives a title against all persons;^ the oixler is given upon a determination of the perishable nature of the property, and the case obviously requires the most ample pro- tection to purchasers. But apart from such cases, the authori- ties agree that attachment in causes in personam has no effect upon the property taken except between the parties to the proceeding.* It is called a proceeding in rem simply because property is seized at the outset instead of in execution of judg- ment for a plaintiff. The attachment cannot rise higher than the ultimate judgment 1 7 Moore, P. 0. 267, 282. See to description, will not be a bar to any the same effect Megee v. Beime, H9 other demand than that of the person Penn. St. 50. against whom the attachment was issued * Megee ». Beirne, 39 Penn. St. 50. and of those claiming under him, even * See cases just cited. In the note if it consist in an adverse claim to the of Hare and Wallace to the Duchess of property attached, or grow out of its ne- Kingston's Case, 2 Smith, Lead. Gas. gotiation when it is a negotiable security, p. 890, 5th Am. ed., it is said : * Prop- Barber ». Hartford Bank, 9 Conn. 407 ; erly speaking, however, proceedings by Myers v. Beeman, 9 I red. 116 ; Ormond attachment are not proceedings in rem, v, Moye, 11 Ired. 564 ; Keiffer v. Ehler, but against the interest of the defend- 18 Penn. St. 388.* And these remarks ant and those claiming under him in are also applicable to proceedings in re- the thing attached. Thus, a judgment plevin. Ibid. ; Certain Logs of Mahog- rendered on the attachment of a debt or any, 2 Sum. 589 ; Dow v. Sanborn, 8 fund, or of specific assets of any other Allen, 181 ; Megee v. Beime, supra. SECT, n.] PRELIMINARY VIEW : RES JUDICATA. 61 § 2. Requisites of the Estoppel. 1. In order to an estoppel by res judicata there must have been a judgment ; verdicts or other findings not followed by ja(^ment are not binding."^ A fortiori is lis pendens no bar to another suit^ though it may be ground for a plea in abatement.^ 2. In the next place the judgment must have been valid.^ If for want of jurisdiction,* or for any other reason, it was void, it will have no eflTect ; though it is otherwise, as we shall see, if it was only voidable. In Wixom v, Stephens, just cited, the former judgment (for the plaintiffs) was ineffectual by reason of a mistake in the name of one of the plaintiffs ; and the court was of opinion that they were not precluded from bringing a new suit to recover upon the original demand. Chief Justice Cooley said that if for any reason the judgment was not valid, and the plaintiffs could not enforce it, it could not constitute a bar to a new suit The bar in such a case sprang from the fact that the party had already obtained a higher security ; where he had obtained no new security, his remedy upon the original demand was not taken away. To give a court, for purposes of res judicata, jurisdiction of a cause in personam, according to the explanation already given of that term,^ it is necessary that both the person of the defend- ant and the snbject-matter of the suit should be fully within the cognizance of the court, either at the beginning or in the course of the action. If, however, the defendant is a citizen or resi- dent of the st^te of the forum, he will be bound by the laws of that state concerning the mode of acquiring jurisdiction over » Estate of Holbert, 67 Cal. 257 ; • Wixom v. Stephens, 17 Mich. 618. Hawkes v. Tniesdell, 99 Mass. 667 ; ^ See e. g. Queen v. Hutch ins, 6 Q. Burlen v. Shannon, ib. 200 ; Lea ». Lea, B. D. 800 ; s. c. 5 Q. B. D. 353 ; Smith ib. 498 ; Thurston v. Thurston, ib. 39 ; v. Neal, 109 U. S. 426 ; Meltzert?. Doll, Herbert ». Fera, ib. 198 ; Wadsworth 91 N. Y. 365, 873 (ex parte proof in r. ConneH, 104 111. 869, 874. There bankruptcy) ; Dodd v. Una, 40 N. J appears to' be some doubt in regard to £q. 672, 718, that neither acquiescence this point in England. Everest & Strode, nor request is sufficient to give a court 26 ; Brown, Estoppel, pi. 189 ; Coke, jurisdiction of the subject-matter of a Litt 227 b. cause. To the aanie effect. School « Colt if. Partridge, 7 Met 570, 574; Trustees «. Stocker, 18 Vroom, 116. Moore r. Spiegel, 142 Mass. 413, suit ^ Ante, pp. 42, 48. pending in another state. 52 ESTOPPEL BT RECORD. [CHAP. II. him ; ^ if not, jurisdiction can be obtained over him, so as to make the judgmeDt available for any purpose other than the appropriation of property of hia actually levied upon, only by personal service of process upon him within the state of the forum,^ lawfully made, or by his voluntary and general appear- ance (without fraud practised upon him,^ it seems). Appear- ance for the mere purpose of contesting the court's jurisdiction will not be sufficient to enable the court to proceed as upon full jurisdiction and pronounce a judgment that will be res judicata.^ If, however, the cause be a true property proceeding in rem as explained heretofore, the presence of a party, assuming that proper monition or notice has been given, becomes immaterial The presence of the subject-matter will be enough to give complete jurisdiction. JBut where, the court having proper jurisdiction, judgment is merely voidable, that is, where the court had jurisdiction to pro- nounce it and the judgment is simply erroneous, or the verdict wrongly found, it will be as conclusive in collateral actions as if it had been in all respects rightly determined. A voidable judgment is perfectly valid until set aside or reversed ; a judg- ment is, for the purposes of the decision, as conclusive upon the law involved in the cause as upon the facts,^ otherwise the doc- trine of res judicata would in many cases be a mere delusion. 3. Further, a judgment, in order to work an estoppel against another litigation upon the same cause of action, must have been rendered upon the merits of the cause. If the decision was ren- 1 Hood V. Hood, 11 Allen, 196 ; rant v. Abendroth, 97 N. Y. 182 ; post, Schibsby r. Westenbolz, L. R. 6 Q. B. Foreign Jadgnients in Personam. 155 ; Rouaillon v. Rousillon, 14 Cb. D. « Dunlap v. Cody, SI Iowa, 260 ; 351 ; ante, p. 49. But probably no Pfiffner v. Krapfel, 28 Iowa, 27. See sovereignty would attempt to make a Wanzer v. Bright, 52 111. 35. Perhaps judgment binding upon its citizens it would be necessary in 8uch a ca.se to beyond the disposition of property at- deny the justice of the claim aa well tached, without service of process or as to allege the fraud. Luckenback u. general appearance, unless the judgment Anderson, 47 Penn. St. 123^ White «. was a true judgment in rem, as e. g. a Crow, 110 U. S. 183. decree of divorce. Hood «. Hood, 110 * Walling v. Beers, 120 Mass. 548; Mass. 463. post, Foreign Judgments in Personam. 2 Galpin v. Page, 18 Wall. 350 ; * Lawrence v, Milwaukee, 45 Wis. Cooper V. Reynolds, 10 Wall. 808 ; Du- 806 ; Case v, Beauregard, 101 U. S. 688. SECT, n.] PRELIMINARY VIEW : RES JUDICATA. 68 dered upon a mere motion or a summary application,^ or if the cause was dismissed upon some preliminary ground, as upon a plea in abatement, e. g. because the wrong forum or mode of suit had been resorted to, for want of jurisdiction, defect in the plead- ings, misjoinder, non-joinder, non-appearance of the plaintiff,* or the like, the parties are at liberty to raise the main issue again in any other form they choose.^ Thus, in Kendal t?. Talbot* the defendants to an action of covenant pleaded in bar a former judgment, rendered in the same court in their favor, in an action brought against them by the plaintiff upon the same covenant. Upon oyer it appeared that the judgment pleaded was rendered on the ground of the insufficiency of the plaintiflTs declara- tion- The court held that such a judgment could not be a bar * And the same is true of the dismissal of a bill in chancery for insufficiency;*^ and so of a 'discontinuance,' though by agree- ment of parties^ Judgment proceeds upon the merits when the very cause of action is decided upon.® Such a decision con- cludes the parties and their privies from relitigating the claim. However, judgment upon a point not touching the merits of the principal matter in dispute will, it seems, in respect of that point, ordinarily ® raise an estoppel. The parties and their privies will 1 Simson v. Hart, 14 Johns. 63, 76 ; 580 ; Birch v. Funk, 2 Met. (Ky.) 544 ; Kanne v, Minneapolis By. Co., 88 Minn. Stevens v, Dunbar, 1 Blackf. 56. 419 ; BenneU v, Denny, ib. 530, 533 ; * Thomas v. Hite, 5 B. Mon. 590. s. c. affirmed nom. Denny v. Bennett, ^ Eronprinz v. Kronprinz, 12 App. 128 U. S. 489. Cas. 256, affirming 11 P. D. 40, C. A. ' Chesnntt v. Frazier, 6 Baxter, 217. Bat the effect would turn upon the ' Hanchey v, Coskrey, 81 Ala. 149 ; nature of the agreement. If there was Strang v. Moog, 72 Ala. 460 ; McCall a release of all claims, there could be no r. Jones, ib. 368 ; Wood v. Fant, 55 new suit. Ib. Mich. 185 ; Clark v. Young, 1 Cranch, ^ Judgment sustaining a plea of the 181 ; Kendal v, Talbot, 1 A. K. Marsh. Statute of Limitations is not upon the 821 ; Birch v. Funk, 2 Met. (Ky. ) 644 ; merits. McElmoyle v. Cohen, 13 Peters, Stevens V. Dunbar, 1 Bbickf. 56; Camp- 812; Morrell v. Moigan, 65 Cal. 575. bell V. Hunt, 104 Ind. 210, 215 ; Proc- But in a subsequent suit in the domestic tor V. Cole, ib. 378 ; Dillinger v. Kelley, courts, between the same parties or those 84 Mo. 561, 569; Griffin v. Seymour, claiming under them, after judgment 15 Iowa, 30 ; Phelps v. Harris, 101 therein for the plaintiff, the Statute of IT. S. 370 ; Schertz «. People, 105 III. ^Limitations could not be alleged against 27 ; Brackett v. People, 115 ni. 29 ; the cause of action. See Shields v. Andrews v. School District, 85 Minn. Schiff, 124 U. S. 851, 857, prescription. 70. • But see cases supra as to the deci- * 1 A. K. Marsh. 821. sion of a mere motion or summary ^ See also Thomas v, Hite, B B. Mon. application. 54 ESTOPPEL BY REGOBD. [CHAP. II. be precluded from asserting the contrary of the fact found in such judgment.^ Thus, dismissal of a suit * for want of juris- diction ' will estop the plaintiff from alleging, after the expira- tion of the Statute of Limitations, that he had begun suit (no other one having been undertaken) within the proper time.^ And, indeed, it appears to be true as a general proposition that where a party succeeds in defeating an action by his pleading, by motion, or the like, he cannot defeat a second action by taking a* position inconsistent with that taken in the first.' The question of the effect of a judgment of non-pros of part of a cause of action arose in Howes v, Austin,^ in a subsequent suit upon the matter non-prossed. The plaintiff in the former action had been called and defaulted for want of a replication to the defendant's plea to the first and second count of the declara- tion. The plaintiff had failed to reply within the time required by a rule of court; and a judgment was entered for the defend- ant in regard to those counts^ that he go hence without day. The defendant contended that this judgment barred any subse- quent action upon the demand stated in those counts. But the court decided that though it might be final for costs,^ its effect in the present case was simply to turn the plaintiff out of court on the cause of action non-prossed ; leaving him at liberty to proceed for the recovery precisely as though the counts non- prossed had never been filed.® In like manner the Supreme Court of the United States in Homer v. Brown ^ said that a judgment of nonsuit was given only after the appearance of the defendant when, from any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he had not followed the remedy which he had chosen, as he ought to da For such delinquency or mistake he might be non-prossed, and was liable to pay the ^ See Adams v. Graves, 75 Iowa, Jones v, McPhUli|)8, S2 Ala. 102, 116 ; 642. Hill V. Huckabee, 70 Ala. 188 ; Hooker ^ Grey V. Hodge, 50 Ga. 262. The v. Hubbard, 102 Mass. 239 ; Clay v. subject is of special importance in rela- • Buchanan, 69 Iowa, 88. See post, chap- tion to judgments of courts of a sister ter 26, at end. state. The reader is referred to the ^ 85 111. 896. chapter on Foreign Judgments in Per- ^ 2 Archbold, Practice, 229. sonam. * See also 8 Black. Coai. 296. s Lehman v. Clark, 85 Ala. 109, 113 ; ^ 16 How. 354. SECT, n.] PRELIMINARY VIEW : RES JUDICATA, 56 costs. But as nothing positive could be implied from the plain- tiff's error in regard to the subject-matter of his suit, he might reassert it by the same remedy in another suit, if appropriate to his cause of action, or by any other which is so, if the first was not.^ It is not, however, for a non-appearance only, or for delays or defaults, that a nonsuit may be entered. The plaintiff's pro- ceeding in such particulars may be altogether regular, and the pleadings may be completed to an issue for a trial by the jury ; yet the parties may agree to take it from the jury with a view to submit the law of the case to the court upon an agreed state- ment of facts, under an agreement that the plaintiff shall be non-prossed if the facts stated are insufficient to maintain the right which he claims. The court in such a case will order a nonsuit if it think the law of it against the plaintiff; but it will declare it to be done in conformity with the agreement of the parties, and its effect upon the plaintiff will be precisely the same as if he had been non-prossed for a non-appearance ^len called to prosecute his suit, or for one of those delays from which it may be adjudged that he is indifferent^ Indeed, nonsuit is declared to be no judgment at all ; it is only a withdrawal of the case before verdict, where a verdict is the essential thing.^ Hence a nonsuit taken by the plaintiff, at whatever stage of the case, cannot estop him to bring a new action, even though the case had gone to judgment, if on appeal 1 Ensign v. Bartholomew, 1 Met. 274. petent jurisdiction, and was between < The case where a party is not barred, the same parties and for the same sub- by a judgment of nonsuit, from haying ject-matter.* Per Clifford, J. in Derby a new action, is where he has either mis- v. Jacques, 1 Cliff. 425, 4S2 ; citing taken his remedy and brought an action Homer v. Brown, supra ; Morgan v. which he could not maintain, or where Bliss, 2 Mass. Ill ; Knox v, Waldo- he has two coUateral, independent reme- borough, 5 Greenl. 185 ; Bridge v. Sum- dies, in which an assertion of one is not ner, 1 Pick. 871 ; Wade v. Howard, repugnant to the existence of the other.' 8 Pick. 353. See also Coit v. Beard, 33 The court in Butler v. Hildreth, 5 Met. Barb. 857 ; Dexter v. Clark, 35 Barb. 49, 52, quoted in Warren v. Spencer 271 ; Jones v. Underwood, ib. 211 ; Jay 'Water Co., 143 Mass. 9, 15. v, Carthage, 48 Maine, 353. « Homer v. Brown, 16 How. 354. » In re May, 28 Ch. D. 516, Brett, 'Judgment of nonsuit, even upon an M. B. ; Manhattan Ins. Co. v. Brough- agreed statement of facts, cannot be ton, 109 U. S. 121 ; Bucherv. Cheshire pleaded in bar to a new suit although R. Co., 125 U. S. 555. See Everest k it was rendered by a court of com- Strode, Estoppel, 29, 80. 66 ESTOPPEL BY RECORD. [CHAP. II. or Other proceeding the judgment had been reversed and the cause remanded before he dismissed his suit.^ If, however, the parties to a cause agree to await the result of another trial, it is said they will be estopped by the judgment in that case even though it was one of nonsuit.^ And judgment by ' retraxit' is held binding collaterally, being distinguished from nonsuit.' A decision upon a demurrer which has, however, clearly gone to the merits of the case, by being based distinctly upon a specific allegation of the facts touching the substance of the action or the defence, is an effectual bar to further litigation ; ^ 1 Bucher v, Cheshire R. Co., supra ; decided that this was no bar to a subse- HoUand v. Hatch, 15 Ohio St. 464. quent suit brought after the assignment See Loeb V. Willis, 100 N. Y. 231 ; post, had been perfected. Mitchell v. Cook, p. 60. 29 Barb. 243. So a decree fixing the * Brown v. Spragne, 6 Denio, 545. fact that the plaintiff had no title at the Among the many other illustrations of time of a former suit is no bar to a. suit the doctrine that a judgment is no bar after having acquired the proper title, to a new suit upon the same demand University v, Maultsby, 2 Jones Eq. unless there was a trial on the merits, the 241 ; Woodbridge v. Banning, 14 Ohio following may be mentioned: Where St. 828 ; Taylorv. McCrackiu, 2 Rlackf. the record of a suit showed that by the 261 ; Perkins v. Parker, 10 Allen, 22. plaintiff's failing to appear to his action ' Judgment on retraxit, being an ad- his writ was ' abated and dismissed,' mission of record by the plaintiff that and judgment given for the defendant he has no cause of action, is held to be for $5 and costs, this was held no bar as perfect a bar as a judgment after to a new suit. Haws v. Tiernan, 58 verdict. United States v. Parker, 120 Penn. St. 192. So where judgment has U. S. 89, 95 ; 8 Black. 296 ; Bank of been rendered solely for informality in Commonwealth v. Hopkins, 2 Dana, a replevin bond, a new action may be 395 ; Merritt v. Campbell, 47 Cal. 542 ; brought. Walbridge v, Shaw, 7 Cush. Wohlford v. Compton, 79 Va. 333 ; 560 ; Morton v, Sweetser, 12 Allen, 134. Coffman v. Brown, 7 Smedes & M. 125. So of a cause tried upon the merits, but In the last case the court held that the eventually dismissed for want of juris- following plea did not constitute a re- diction. Waddle v. Ishe, 12 Ala. 308. traxit : ' That a suit had been previously In McFarlane v. Cushman, 21 Wis. brought for the same cause of action, 401, the fact that the plaintiff, obligee between the same parties, in which the in a bond sued on, had previously plaintiff in his own proper person came brought suit upon the same bond be- into court and confessed that he would fore its maturity, was decided to be not further prosecute his said suit no bar to the present action, instituted against the said defendant, but from after the bond had become due. To the same altogether withdrew himself ; the same effect, Dillinger v, Kelley, whereupon it was considered by the 84 Mo. 561, 569 ; Gray r. Dougherty, court that the plaintiff should take 25 Cal. 266 ; Quackenbush v. £hle, 5 nothing, and that defendant go without Barb. 469. The assignee of a mort- day.* gage having sued to foreclose the same, * Bissell ». Spring Valley, 124 U. S. judgment was given against him for a 225 ; Bonchaud ». Diss, 3 Denio, 238 ; defect in the assignment ; and it was McLaughlin v, Doaue, 40 Kans. 392 ; SECT. II.] PRELIMINARY VIEW : RES JUDICATA. 67 and upon the facts admitted it is held to be as conclusive as a verdict ; ^ and this will be true in regard to such facts, though the second litigation, being between the same parties, is not upon the same cause of action.^ But where a demurrer pre- sents two objections, and is sustained generally, one of the grounds being a preliminary defect and the other going to the merits of the case, it is held that it will be presumed that the decision rested upon the former ground.* Where judgment had been given in a small sum for failure to perform a contract ^ declared upon in several counts, some for negligence, some for false warranty, and one in trover, it was strenuously ai^ued in a subsequent suit on the contract that by judgment for the plaintiff, though upon a demurrer to the declaration, it had been conclusively determined that the contract had been performed, except so far as the judgment for the small sum indicated the contrary. But the court ruled otherwise.*^ • Carlin v. Brackett, 38 Minn. 807 ; * Bissell v. Spring Valley, supra. Johnson v. Pate, 90 N. Car. 834 ; Loa • Bissell v. Spring Valley, supra ; Angeles v. Melius, 68 Cal. 16 ; Felt v. Griffin v, Seymour, 15 Iowa, 80. Turnure, 48 Iowa, 897 ; Gray v. Gray, * Chapin v, Curtis, 23 Conn. 388. 84 Ga. 499; Wilson v. Ray, 24 Ind. * *Did that demun^r prove,' said 156 ; Estep v. Larsh, 21 Ind. 190 ; Mr. Justice Ellsworth, 'that the facts Campbell v. Hunt, 104 Ind. 210, 215 ; contained in the declaration were not Robinson v. Howard, 5 Cal. 428 ; Terry true ? and it must be this to help the V. Hammonds, 47 Cal. 82 ; City Bank of plaintiff. It rather proved tlie contrary New Orleans v. Welden, 1 La. An. 46 ; if it proved anything ; and for the Keater v. Hock, 16 Iowa, 28 ; Coffin r. purposes of that case it certainly did Knott, 2 G. Greene, 682 ; Perkins v. prove the contrary. How then did it MooTt», 16 Ala. 17. A plaintiff in a bill prove full performance by the plaintiff, in equity is not concluded on demurrer which was flatly denied in the declara- by his allegations of /aw. Thompsons, tion ? The whole effect of the judg- National Bank of Redemption, 106 Mass. ment on a demurrer, and the $100 dam- 128 ; Brown v, Newall, 2 Mylne & C. ages, is that on that declaration, on 555, 576. some of the counts, the defendant had 1 Bissell V. Spring Valley, 124 U. S. subjected himself to pay $100 for not 225 ; Bouchaud v. Dias, 8 Denio, 238 ; performing his conti-act, or for his Nispel V. Laparle, 74 111. 806. Judg- fraudulent warranty, or his conversion ment sustaining a demurrer to a dec- of the plaintiff's goods. The admission laration in a suit for seduction, based by the demurrer is rather that the upon the Statute of Limitations, is no common carriers did nothing than that bar to a subsequent suit by the same they performed anything, much less plaintiff against the same defendant, that they had done everything except averring her infancy, if that fact was to the amount of $100, which dam- not set up in the former action. Morrell ages might have been given, and prob- V. Morgan, 66 Cal. 676. ably were given, for the carriers* destroy. 58 ESTOPPEL BY RECOBD. [CHAP. II. Dismissal of a bill in equity, upon the merits, is of course a bar to further proceedings in the same court for the same pur- pose, and this, too, though the court may not have gone into the evidence,^ as in the case of a dismissal by agreement.^ In the case of Borrowscale v. Tuttle * the plaintiflF sought to redeem a parcel of land from mortgage. The defence was this : The plaintiffs grantor of the equity of redemption had brought a suit in chancery against the same defendant, who appeared and answered under oath. Subsequently on motion of the plaintiff in that cause, and without the defendant's knowledge, the bill was dismissed and judgment given for the defendant for costs. The time had expired within which the plaintiff might have filed a replication and taken testimony. The court held the defence perfect. It was a judgment which, as had been set- tled in Foote v. Gibbs,* was conclusively presumed to have been upon the merits, and ^as a final determination of the controversy.^ Ordinarily a decree in equity is in fact (though not as matter of law) rendered upon the merits when no qualifying words, such as ' without prejudice,* are used.® Still, where an answer ing a portion of the shippers* lumber in * Kronprinz v. Krouprinz, 12 App. the port of New York ; and so that Cas. 256, 269 ; The Bellcaira, 10 P. D. record furnished no evidence at all of 161» C. A. the performance of the voyage, . . .any • 5 AUen, 877. more than a reconl of a recovery by a * 1 Gray, 412. proprietor, who has sued his contractor * Further see Case v, Beauregard, for stealing and wasting the timber he 101 U. S. 688 ; Phelps v. Harris, ib furnished him to build the proprietor's 870. house, and a recovery for the value of the • Lyon r. Perin Manuf. Co., supra lumber destroyed, proves that the house Durant ir. Essex Ck)., 7 Wall 107 was built in time and manner as agreed ; Walden v, Bodley, 14 Peters, 156 and there being other counts for not per- Hughes v. United States, 4 Wall. 237 ; forming in due time and in proper man- Bige low v. Winsor, 1 Gray, 801 ; Foot© ner make^ no difference, for an admission r. Gibbs, ib. 412 ; Tankers! ey v, Pettis, even of the whole cause of action in 71 Ala. 179, 185 ; Strang v. Moog, 72 such count has no tendency to prove Ala, 460, 465 ; Knowlton v. Hanbury, performance by the builder.' See also 117 111. 471 ; Adams v. Graves, 75 concerning judgment on demurrer Mur- Iowa, 642, 646. See Ijangmead w. dock V. Gaskill, 8 Baxter, 22 ; Jameson Maple, 18 C. B. N. R. 256 ; Mey v. V, McCoy, 5 Heisk. 109 ; McNairy v, GuUman, 105 111. 272 ; Garrick v. Nashville, 2 Baxter, 251 ; Gould v. Chamberiain, 97 IlL 620 ; Winthrop Evansville R. Co., 91 U. S. 546. Iron Co. v. Meeker, 109 U. S. 180 ; 1 Lyon V. Perin Manuf. Co., 125 Smith v. Auld, 31 Kans. 262, 267. U. S. 698. In the last case it is declared, upon the SECT, n.] PBELIMINART VIEW : RES JUDICATA. 69 in equity sets up various matters in defence, some going to the merits of the case and others not, and there is a general decree of dismissal, the decree will not bar another action for the same demand because of the uncertainty whether it was rendered on the merits,^ unless the uncertainty were entirely removed by evidence.^ Dismissal of a bill seeking relief in equity in respect of an instrument on which a party can sue at law is no bar, how- ever, to an action at law upon the same instrument, though the decree does not state the dismissal to have been without preju- dice. The dismissal merely means that there is no equity in the plaintiff's case, and a suit at law upon the instrument is not inconsistent with this.^ 4. The judgment, further, should have been final^ We have seen that a preliminary decree or judgment, or a decision upon a motion ^ in the course of a trial, cannot ordinarily result, if the case go no further, in precluding the parties from drawing the matter into issue again. The case must have gone to a complete termination, so that nothing more is necessary, for the purpose of the suit, to settle the rights of the parties or the extent of those rights. Thus, an order in garnishment directing the garnishee to deliver certain property of the defendant to the sheriff for sale, from the proceeds of which the garnishee is to be paid a sum named in the order, is not an adjudication that the defendant owes the garnishee the amount fixed by the order, anthority of Loodenback v. Collins, bile v. Kimball, 102 U. S. 691 ; Russell 4 Ohio St. 251, and Love v. Trueman, v. Place, 94 U. S. 606. U Ohio St. 45, that it should affirma- > Russell v. Place, 94 U. S. 606 ; tively apitear that the dismissal was Chrisman v. Harman, 29 Gratt. 494. on the merits to make it a bar. And * Pendleton v. Dalton, 92 N. Car. in the absence of evidence npon the 185 ; Cramer v. Moore, 36 Ohio St. 847 ; point, that appears to be correct, for an Porter v. Wagner, ib. 471 ; Beere ». estoppel can only be founded upon a Fleming, IS Ir. C. L. 506. See also certainty. Besides it should appear in Wright v, Deklyne, 1 Peters C. 0. some way that the fact in question was 199 ; McNamara r. Arthur, 2 Ball & B. necesftarily decided. See The Bnsteed, 849. 100 Mass. 409. The fact that the dis- ^ Webb v. Buckalew, 82 N. Y. 555 ; missal is not stated to be without prejn- Linington v. Strong, 111 111. 152, that dice does not necessarily show that it judgment reversing and remanding a was on the merits. cause is not final, in the sense of the 1 Foster v. Busteed, 100 Mass. 409 ; rule. Bnrlen v. Shannon, 99 Mass. 200 ; Cook * Ford v. Doyle, 44 Cal. 635. V. Burnley, 45 Tex. 97, 117. See Mo^ 60 ESTOPPEL BY BEGOBD. [CHAP. II. unless there was an issue concerning the sum due.^ Nor will an estoppel arise upon the mere verdict of a jury or upon the finding of a judge or a referee unless the same is followed by a valid judgment.^ But it is laid down that judgment cannot be prevented by an attempt on the part of the plaintiff to dismiss a cause after judgment against him, appeal and affirmance, and remanding of the action for further proceedings.^ A condi- tional judgment is binding for its own purpose equally with an ordinary judgment* 5. In the next place the judgment should be in force at the time of the alleged res judicata. If the question is still sub judice, and the judgment in question suspended meantime, there is no estoppel ; * while if, notwithstanding any subsequent pro- ceedings, it remains in full force and vigor, as in the case of a writ of error,^ there is a case of res judicata. On the other hand, if suit has been discontinued even after judgment, the effect is to remove the estoppel.^ In the case cited a mortgagee, after 1 Collins V. Jennings, 42 Iowa, 447. * Fuller v. Eastman, 81 Maine, 284 ; See also Barnes r. St. Louis Ry. Co., Merriam v. Merriani, 6 Cush. 91, 93 ; 71 Mo. 163. The nile as to interlocu- Burke v. Miller, 4 Gray, 114 ; Spar- tory oMers has been somewhat enlarged hawk v. Wills, 5 Gray, 423 ; Stevens v. by statute in New York ; but still they Miner, ib. 429, note ; Minot v. Sawyer, are not deemed to possess the full effi- 8 Allen, 78 ; Freison v. Bates College, cacy of judgments. Webb v. Bucka- 128 Mass. 466 ; Divoll v. Atwood, 41 lew, 82 N. Y. 555 ; Easton v. Pickers- N. H. 449. Beyoun V. Wooftter, 114 U. S. 104, 111. 19. See also WUliams v. Williams, 68 But qa«re whether sach a decree would Wis. 68, a striking case. 76 ESTOPPEL BY RBCOBD. [CHAP. H, be made use of by the defendant The tendency of the later authorities in this country is towards the English rule in its first branch, to wit, permitting the subsequent use of facts in avoidance of the first action.^ On the other hand, cases, now however treated as overruled, have been decided in this country which allowed a defendant after judgment against him by default to maintain an action to recover the amount of a part payment not set up or allowed in the former action.^ In LoriDg v, Mansfield ^ the plaintiff sued to recover the amount of a partial payment which he alleged he had made upon a note of his held by the defendant, and had not been allowed in a former suit brought by the present defendant upon the note. The present plaintiff appeared and defended that suit, but then said nothing of the alleged partial payment now in question. The court held that the action could not be maintained; distinguishing the case from the earlier cases of Rowe V. Smith * and Fowler v. Shearer.^ The point of distinc- tion was that in those cases the judgment was obtained by default ; that ' there was a trust and confidence between the par- ties ; ' and that the defendant had a right to expect that the plaintiff in taking judgment would make the allowance of the payment. This distinction has, however, been disregarded in later cases of the same court, and the two cases above mentioned have been declared overruled.^ In a recent case before the Supreme Court of New York, 1 Cromwell v. Sac, 94 U. S. 851, liereafter to be examined at length. 866 ; Hanham v. Sherman, 114 Mass. 19; White v. Merritt, 7 N.'Y. 852 ; Bodur- Harrison v. Phoenix Ins. Co., 83 Ind. tha v. Phelon, IS Gray, 418 ; Ressequie 575, 577 ; Unfried v. Huberer, 68 Ind. v- Byers, 52 Wis. 650 ; Goblet;. Dillon, 67. See Shirland v. First National 86 Ind. 827. Bank, 65 Iowa, 96. But see Ebersole * Rowe v. Smith, 16 Mass. 806 ; V. Latimer, ib. 164. See also Adams v. Fowler v. Shearer, 7 Mass. 14 ; Smith Adams, 25 Minn. 72, where it is held v. Weeks, 26 Barb. 463. that npon mere judgment by default in * 17 Mass. 894. a suit on one of several promissory notes * 16 Mass. 806. all tainted with the same illegality, the * 7 Mass. 14. defendant may when sued upon another ■ Fuller v. Shattuck, 18 Gray, 70. of the notes still avail himself of the See also Sack^t v. Loomis, 4 Gray. 148 ; defence. Hughes v. Alexander, 5 Duer, Jordan v, Phelps, 8 Gush. 547 ; Grecna- 488. With the case of defences to baum v. Elliott, 60 Mo. 25, 80 ; Decker judgment by default in general should v. Adams. 4 Dutch. 511, 514 ; Corey v, be compared cases of cross-demands Gale, 18 Vt. 639, 645. SECT. IV.] PREUMINABY VIEW : BE8 JUDICATA. 77 afiirmed by the Court of Appeals,^ the rule in Rowe v. Smith, with the distinction on which it was founded, is also rejected. In the New York case referred to the maker of a promissory note had made a partial payment upon it, which had not been indorsed. The payee sued upon the note and recovered judg- ment for the fuU amount, the maker not defending. A surety on the note, having paid the judgment, took an assignment of it and brought an action to recover the amount of the partial payment ; but the court held the action not maintainable. The case of Smith v. Weeks ^ was overruled. The court said that this case found no support in New York or in England, or in any of the states to whose authorities they had been referred, except in Eowe v. Smith, which, as has been said, was considered as overruled.* * The law,' it was" said, ' cannot uphold the trust and faith that allow a man to lie by, as the plaintifiT here did in the first sui^ and rest upon the belief that the plaintifiT there would not do what in the summons or complaint he had ex- pressly notified this plaintifiT he would do, namely, take judg- ment for the whole amount of the note, and then maintain an action to recover back part of the judgment on the ground that his just confidence had been betrayed.' This appears to be the better opinion.* The meaning sim- ply is that judgment by default, like judgment on contest, is conclusive of what it actually professes to decide as deter- mined from the pleadings ; in other words, that facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings.*^ If this be not true, judg- 1 Binck V. Wood, 43 Barb. 815 ; 87 428 ; Dey i;. Dox, 9 Wend. 129 ; Le How. Pr. 653, where it is stated that Guen v. Gouvemeur, 1 Johns. Gas. 486 ; the judgment of the Sapreme Court was Marriott v. Hampton, 7 T. K. 269 ; Kist affirmed in June, 1869. So in 1 Abb. v. Atkinson, 2 Camp. 68. N. Y. Dig. p. xxxiv, 2d ed. * Huffer v. Allen, L. R. 2 Ex. 14 ; < 26 Barb. 463. Sutliff v. Brown, 65 Iowa, 42. See £ng- * The following cases were cited : strom v. Sherburne, 137 Mass. 152. Tilton V. Gordon, 1 N. H. 33 (overruled * See State v. McBride, 76 Ala. 51 ; by Snow r. Prescott, 12 N. H. 636) ; McCalley ». Wilburn, 77 Ala. 549 (nil Broughton v. Mcintosh, 1 Ala. 103 ; dicit, L e. judgment without a plea) ; Mitchell V, Sanford, 11 Ala.' 696 ; Loo- Barton v. Anderson, 104 Ind. 578 ; mis V. Pulver, 9 Johns. 244 ; White v. Shirland v. First National Bank, 65 Ward, ib.' 232 ; Battey v. Button, 18 Iowa, 96. The case of Ebersole v. Lati- Johna. 187 ; Walker v, Ames, 2 Cowen, mer, 66 Iowa, 164, goes too far. If the 78 ESTOPPEL BY RECOBD. [CHAP. II. ments by default are of little worth. The effect of the English rule in such cases is seen in the case of judgments by default against administrators. Thus, in the case of Bock v, Leighton ^ the plaintiff sued the defendant, a sheriff, for a false return. The fact was that the sheriff had returned a devastavit to an execution against the plaintiff as an administrator ; he having suffered a judgment by default. The plaintiff contended that the sheriff should have returned nulla bona, instead of a devas- tavit. The court, however, ruled that the confession of judg- ment, or suffering judgment by default, in the case of an execu- tor or administrator, was an admission of assets and estopped him to deny the fact. Judgment was therefore given for the defendant. The doctrine of this case is well settled.* It is, however, laid down for clear law by the Supreme Court of the United States that judgment by default admits the legality of the demand or claim in suit only for the purpose of the action, and that it does not make the allegations of the declaration evidence in an action upon a different demand ; ' by way^ that is to say, of an estoppel by verdict.* Of course nothing short of final judgment upon default can have conclusive effect. Thus, judgment by default of appearance of the defendant does not operate as a bar to another action until after the damages have been determined.® Whitaker v, Bramson involved a judgment under a rule of court authorizing the plaintiff, in an action of contract, to sign judgment against the defendant upon his omission to file an affidavit of defence, leaving the amount of the judgment indeterminate ; and the court held that it was therefore only an interlocutory judgment, and did not work an estoppel to a new suit for the same cause.® declaration set ont no cause of action, 176 ; s. c. 2 Scott, 355 ; Grace v. Mar^ there is no estoppel. Bosch v, Kassing, tin, 47 Ala. 135. See also 2 Wms. 64 Iowa, 312. Nor can the judgment Executors, 1953 (7th Eng. ed.). be binding except in regard to matters ' Cromwell v. Sac, 94 U. S. 850, 356. properly averred in the declaration. * See post, p. 90. Barton v. Anderson, 104 Ind. 578, cit- • Whitaker w. Bramson, 2 Paine, 209. ing Unfried v, Huberer, 68 Ind. 67, • See further, as to judgment by de- and other cases. Further in regard to fault, Fagg v. Clements, 16 Cal. 389 ; judgments by default see Nemetty v. Mailhouae v. Inloes, 18 Md. 328; Green Naylor, 100 N. Y. 662. v, Hamilton, 16 Md. 817, 329.; Minor v. 1 1 Salk. 810 ; s. c. 1 Ld. Raym. 689. Walter, 17 Mass. 287 ; Brumma^im v. ^ Leonard v. Simpson, 2 Bing. N. C. Ambrose, 48 Cal. 366 ; Mason v. Patter- SBCT. lY.] PBEUMINARY VIEW : BBS JUDICATA. 79 3. Judgment in proceedings supplementary to the main judg- ment is also binding in collateral actions. Thus, if a judgment debtor be examined concerning his property before a court or referee on proceedings supplementary to execution, the order made by the tribunal before which the examination takes place, concerning the subject-matter, estops the parties from reliti- gating the same matter.^ 4 Judgment on a writ of partition at common law works an estoppel concerning the transfer of title ;^ while partition in chancery does not deal with or decide questions of controverted title. A decree in chancery does not transfer or convey title even after the allotment of shares of the parties ; the legal title remains as before.' In neither case does the judgment operate beyond the title held at the time of the suit ; it does not affect a title afterwards acquired ;^ it is like judgments in general Judgment in partition binds parties only ; ^ it may indeed conclnde contingent interests of persons not in being, but this only in cases where the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of the land, and preserving it to the extent neces- sary to satisfy such interests as they arise.^ son, 74 III. 191. Under statutes of mi- « See Elston v. Piggott, 94 Ind. 14, nois judgment by default in a county 24, citing Miller o. Noble, 86 Ind. 527, court, for collection of taxes, is not con- and other cases, in regard to decrees ; elusive. Gage v. Pumpelly, 115 U. S. Bryan v, Uland, 101 Ind. 477. So of 464. other judgments, e. g. in ejectment ; ^ McCullough V. Clark, 41 Cal. 298. they do not bar an after-acquired title. * Gay v. Parpart, 106 U. S. 679. Bums v, Hodgdon, 64 Cal. 72 ; People's See Burroughs o. De Couts, 70 CaL 861. Bank r. Hodgdon, ib. 95 ; Embrey v. Secus in Indiana under statutes. Luntz Palmer, 107 U. S. 8, 11. Contra where V. Greve, 102 Ind. 178 ; Elston o. Pig- the after-acquired title was only a formal gott, 94 Ind. 14. In that state, and conveyance of the title already litigated. probably in other states, it merely sev- Phelan v. Tyler, 64 Cal. 84. ers possession and awards to each ten- ^ Childs v. Hayman, 72 Ga. 791. ant bis pert in severalty. Elston v. * Monarque v. Monarque, 80 N. Y. Piggott, supra. But title may there be 820, 826, Andrews, J. ; Mead v. Mitchell, put in issue and decided. Luntz v. 17 N. Y. 210 ; Brevoort v, Brevoort, 70 Greve, supra, and cases cited. N. Y. 186. A tenant in common may * Gay 0. Parpart, at p. 689, Miller, by agreement estop himself to claim J.; De la Yega 9. licague, 64 Texas, 205, partition. Eberts v, Fisher, 54 Mich. 215. See the second case for a further 294 ; Avery v, Paine, 12 Mich. 540. conaideratioD of partition in equity. 80 ESTOPPEL BY BECOKD. [CHAP. ID. CHAPTER IIL JUDGMENTS IN PERSONAM. In presenting this subject we have adopted the following divisions : — 1. Estoppel by former judgment ; 2. Estoppel by former ver- dict; 3. The limits and operation of judgment and verdict estoppels; 4. Under what circumstances judgments may be impeached in collateral actions. § 1. Former Judgment : Identity of Causes of Action, Judgment upon the merits of a cause in litigation rendered by any court of competent jurisdiction is a bar to all further litigation of the same claim or demand.^ This rule gives rise to a defensive position called as a matter of pleading * former judgment;' the essential and the characteristic feature of which consists in this, that it must be shown that there is identity between the present and the previous cause of action. By his plea the defendant says in effect that the plaintiff has on a previous occasion brought an action against him, or against one under whom the defendant claims, in respect of the very same cause now alleged ; in which action judgment was given for the plaintiff or for the defendant, as the case may be. He demands to know why he should now be pursued again ; *nemo bis vexari debet pro una et eadem causa.' The ques- tion, then, to be decided is whether the two causes of action are the same ; if they are not identical, the jlefence is not good. We now present some of the cases which illustrate or explain this point. 1 See e. g. Cromwell v. Sac, 94 U. S. TJmlauf r. TJmlauf, 118 111. 580 ; Thomas 351 ; Borer v. Chapman, 119 U. S. 687; v. Merry, 113 Ind. 83, 91 ; Rogers v, Minneapolis Assoc, v. Caniield, 121 U. S. Kimsey, 101 N. C. 559; Bickett v, Nash, 295, 808 ; Wilson r. Deen, ib. 525 ; ib. 579 ; Ma^iis v. Sleeper, 69 Wis. Bissell V, Spring Valley, 124 U. S. 215 ; 219, 223. SECT. I.] JUDGMENTS IN PERSONAM. 81 The case of Cleaton v. Ghambliss,^ decided by the Virginia Court of Appeals, will serve to illustrate the subject Apart from unnecessary details the case was this: Wessen being indebted to the plaintiff Chambliss, paid him by unuegotiable bonds purporting to have been executed to him (Wessen) by the defendant Cleaton and T C, the defendant having before the transfer promised the plaintiff that he would pay them. The defendant having failed to pay the bonds at maturity, Chambliss sued him upon them in Wessen*s name ; to which action the former pleaded non est factum, and obtained judg- ment on his plea. Chambliss then sued him on the special promise to pay the bonds. The defendant demurred to a count setting out the foregoing matters ; and he contended inter alia that the judgment in his favor on the bonds was a complete bar to the action. But the demurrer was overruled.* In a case before the Supreme Court of the United States * it appeared that the plaintiff had sued the defendant for salt sold and delivered. The defendant pleaded that having given in payment of the salt the note of a third party indorsed by himself, the plaintiff sued thereon, and judgment was given against him that the action could not be maintained until judgment had been obtained against the maker and his insol- vency made to appear. But the plea was held bad. Chief Justice Marshall said it was clear that the same question was not tried in both cases. In the first case the point decided was that the suit against the indorser would not lie until a suit had been brought against the maker; in the second suit the point to be decided was whether the plaintiffs had lost ^ 6 Rand. 86. was upon non est factum ; that was the 2 After having considered the ques- point decided, the allegation taken and tions of pleading and other matters in- fonnd ; an allegation not put in issue, volved, the court by Carr, J. aaid that and which could not possibly be put in the record must also show that issue issue, in the case before us. If tben the was taken on the same allegation which judgment on the bonds had been pleaded was the foundation of the second action, the plea could not have availed ; for if * Here,* to quote the language of the it had stated the record correctly, a de- court, 'the foundation of the action is murrer would have lain ; and if incor- the promise of Cleaton to Chambliss ; rectly, the replication of nul tiel record there the foundation is the bond of would have overthrown it.' Cleaton to Wessen. The issue there > Clark v. Young, 1 Cranch, 181. 6 82 ESTOPPEL BY BECOBD. [CHAP. IH. their remedy on the original contract by their conduct re- specting the note* These were distinct points ; and the merits of the latter case were not involved in the decision of the former. In the recent case of Goodrich v. City,^ also before the Supreme Court of the United States, the appellants filed a bill to recover damages for the sinking of the steamer Huron in the Chicago River. The casualty had been effected by the steamer running against a sunken wreck. The libel alleged that it was the duty of the city to have the wreck removed, and that it was guilty of negligence in not having done so. It further alleged that the city entered upon the work of removal, but abandoned it before the work was accomplished. The defence among other things was a former judgment rendered in the Supi-eme Court of lUiuois, in an action on the case between the same parties respecting the same injury.^ The declaration in that case had set forth that it was the duty of the city to remove and prevent obstructions in the river; that the city assumed to dischai^e the duty and entered upon the work ; that it had negligently suffered the obstruction of the wreck to remain, though knowing its character, and had neglected to place any signal near it to indicate its position; and that by reason of the premises the steamer Huron had run upon the sunken wreck. Counsel for the libellants contended that, as there was no specific allegation in the declaration that the city had 'Undertaken to remove the particular wreck (the main charge in the libel), the case made in the first action was different from tliat in the present ; and that the state court had merely decided that an action would not lie against the city for a simple omission to act, — for the mere non-assumption of the power conferred by the charter. The question of liability, in all cases where the city had elected to act and had entered upon and assumed the work, was still an open question. But the court by Mr. Justice Swayne said that upon a careful examination of the declaration and the libel they must hold that there was no such difference between the cases as to take the present action out of the operation of the principle of res judicata. ^ 5 Wall 566. > Goodrich v. City, 20 III. 446. 1 SECT. I.] JUDGMENTS IN PERSONAM. 83 The plaintiff in Norton v. Huxley ^ brought an action for a tort, charging the defendant with having fraudulently induced him to take the assignment of an unfinished contract which proved unfortunate for him. In pursuance of this contract the plaintiff had furnished labor, materials, and money, for which the assignor of the contract had given him an order on the defendant, which the latter refused to accept. The defendant offered in bar of the suit the record of an action by the plaintiff against the defendant to recover for the services, materials, and money just mentioned, in which suit judgment had gone for the. defendant But the record was excluded. The court said that the former action was one of contract, in which a promise and a breach had been averred. This was an action for a tort, in which the plaintiff alleged that he had sustained damages by the fraudulent representations of the defendant. Proof which would fully support the one case would have no tendency to sus- tain the other, the questions involved being essentially unlike. A judgment, however, for the defendant in an action for a false representation — the inducement to a contract, for example of soundness on an exchange of horses — is a bar to a subsequent action of contract on the defendant's warranty of the fact falsely stated at the time of the contract ; the two causes of action are identical.^ On the other hand, where an action ex contractu has been defeated by proof of some special agreement in r^rd to performance, the judgment will not bar an action by the same plaintiff upon the special agreement. Thus, in Harding v. Hale * it appeared that the plaintiff had previously brought an action for goods sold, which was defeated by the plea of a special promise by the defendant to pay certain debts of the plaintiff, as a partial payment of the goods. The present action being brought upon this special promise, the defendant pleaded in bar the judgment in the action for the goods sold in bar. But the court held the plea bad. Mr. Justice Thomas said that the first suit was not for the same cause of action, nor to be supported by the same evidence, as the second. The judgment 1 13 Gray, 285. s Norton v, Doberty, 8 Oray, 872 ; Ware v. Percival, 61 Maine, 891. * 2 Gray, 899. 84 ESTOPPEL BY BECOED. [CHAP. III. in the first did not negative the cause of action relied upon in the second, but affirmed its existence and pointed the way to a better writ Again, in Fitch v. First National Bank ^ it appeared that one of a number of creditors, who were seeking to set aside certain conveyances of their debtor as fraudulent, had already obtained judgment against the debtor, and had levied upon one of the tracts conveyed ; but it was held that the former judgment and proceeding did not estop him from maintaining (with the other creditors) the present suit. The second action was not to obtain another judgment upon his demand, but a decree setting aside the conveyances so as to make his execution available. In like manner^ where it appears that judgment went against a demandant in a writ of entry on the ground that his grantor was disseised at the time of delivering the deed, he may show in a later suit that he has since fortified his title in this respect^ So judgment for a defendant in ejectment because a deed upon which the plaintiff relied was defective, owing to a mistake in it, is no bar to a proceeding to have the mistake corrected and the land then adjudged to the plaintiff.^ So also dismissal of a suit to enforce personal liability against the defendant for taxes is no bar to a suit to subject land of his under a statutory lien to the payment of the same taxes.* The test referred to in some of these cases, whether the evi- dence, actually adduced or newly discovered,^ which would sup- port the one case would sustain the other, is a universal one when applied to the judgment rendered in the former action, and not merely to the plaintiff's cause of action as stated in his declaration.® The plaintiff's action may have been turned aside by evidence which prevented a direct judgment upon the merits 1 99 Ind. 443. for a fresh action after judgment against * Perkius ». Parker, 10 Allen, 22 ; the same plaintiff. Ibid. Hawley v. Simons, 102 111. 115 ; ante, ^ See, besides the cases referred to in p. 56, note 2. the text above, Steinbach v. Relief Ins. « Hawley v. Simons, 102 111. 116. Co., 77 N. Y. 498 ; Dawley v. Brown, See Houstoun v. Sligo, 29 Ch. D. 79 N. Y. 890 ; Stowell v. Chamberlain, 448. 60 N. Y. 272 ; Miller v. Manice, 6 Hill, * Biffgins V. People, 106 III 270. 114 ; Riker v. Hooper, 35 Vt 457 ; * In re May, 28 Ch. D. 616. Newly Marsh v. Pier, 4 Rawle, 273 ; Motley v. discovered evidence affords no ground Harris, 1 Lea, 677. SECT. I.] JUDGMENTS IN PEBSONAM. 85 of his demand ; and then, though the evidence in the second action, after the plaintiff has overcome the objection to the first, would have supported the first demand, there is of course uo bar. Thus^ as we have seen, if the former suit was defeated by a defect of title in the plaintiff, the judgment will not bar pro- ceediuj'S after the plaintiff's title has been perfected.^ So too it is not enough to constitute an estoppel that the same facts must be used in the second action which were used in the first ; for it may be that such facts constituted but one severable part of the plaintiff's whole demand.^ Nor a fortiori is it enough that the two cases grew out of the same transaction or state of facts so as to require the same evidence to be produced in the second suit ; for the objecto and causes of action relating to the fact may be successive or otherwise different.^ This will be seen in a class of cases now to be mentioned. In the case of periodically recurring^ liability, as in tax assessments or in debts due by instalment, a former judgment may or may not bar a subsequent actioa It cannot be a bar to an action for a sum subsequently falling due, it would seem, when the former judgment was for the plaintiff.^ And in the case of taxes the same must be true when the judgment was for the defendant, if there has since been any change of law or fact in respect of the defendant ;^ for generally speaking a judgment decides the rights of the parties only from the time of the writ or the time laid in the declaration.^ If, however, there has been no change, judgment based solely upon the validity of the de- mand and not upon facts in avoidance, such as payment or com- ^ Amesti v. Castro, 49 CaL 825 ; Per- * See Lake Shore By. Co. v. State, kins V. Parker, 10 Allen, 22 ; ante, 46 Mich. 198 ; Hanham o. Sherman, p. 5d, note, 114 Mass. 19 ;' Burritt v. Belfy, 47 * Nathans v. Hope» 77 N. Y. 420. Conn. 828 ; Secor p. Sturgis, 16 N. Y. See also Lyon v. Bobbins, 45 Conn. 548. If, however, the plaintiiT were to 513. wait until the whole debt were due, he * As in the case of cross-demands or could ordinarily bring but one action. of an action for what might have been Burritt v. Belfy, supra. made a defence to the former suit, but * Davenport r. Chicago B. Co., 88 was not required by law so to be used. Iowa, 634. See infra, pp. 174 et 8e<]., where this ^ Drake v. Torse, 42 Iowa, 658 ; gabject is fully considered. Wisconsin v. Torinus, 28 Minn. 175, * Continuing damage is another 180 ; Newington v. Levy, L. B. 7 C. P. thing, to be considered later. 180. 86 ESTOPPEL BY RECORD. [CHAP. ITI. promise, would doubtless operate as a bar. In the case of an action on a debt due by instalment, as for example on a promis- sory note, judgment against the validity of the main obligation itself, applying to all instalments alike, would preclude the obligee from suing upon any of the instcdments ; ^ but an adverse judgment beised upon grounds relating merely to a particular instalment sued upon could not in principle bar an action on another of them.^ Nor could a judgment, for example, in tres- pass bar an action for a previous demand distinct from the one sued upon, though of the same nature.' It will be seen that the fact that the form of action and precise remedy sought are different in the two suits will not prevent the existence of an estoppel.* The estoppel grows out of matter of substance, and form has little, if anything, to do with it This is believed to be true at the present time even in regard to matters of pleading, according to more widely prevail- ing modes.* After what has been said it need hardly be added that, where the court had jurisdiction and the judgment was not. 'con- cocted ' in frauds it is entirely conclusive upon the parties, and cannot be impeached in any collateral action either because, e. g. the law was incorrectly applied to the case, or because some statute under which the proceedings were taken^ as, e. g. an in- solvency statute, was unconstitutional,^ or because the facts before the court were incorrectly found, or because tlie facts were not all known at the time. A recent case in the Court of Exchequer 7 shows in a very strong light how rigidly the English courts hold to the doctrine under consideration. It was an 1 Cleveland v. CreViston, 98 Ind. 81; ^ See chapter 22. Strauss i;. Murtief, 64 Ala. 299. • Clay v. Smith, 8 Peters, 411 ; * So of a series of notes given by the Chapman v. Forsyth, 2 How. 202 ; same pei-son. Felton v. Smith, 88 Ind. Baldwin v. Hale, 1 WaU. 228 ; Oilman 149, 162 ; Gardner v, Buckbee, 8 Cowen, v. Lockwood, 4 Wall. 284 ; Morse v. 120 ; post, p. 96. See further, concern- Lowell, 7 Met 152; Bucklin v. Bucklin, ing rights of action for recurring liabil- 97 Mass. 266; Fogler v. Clark, 80 Maine, ity, Duncan v. Bancroft, 110 Mass. 267. 237. The rule was at one time teken to » De la Guerra v. Newhall, 66 Cal. be contra in regard to insolvency laws. 21. Kimberly v. Ely, 6 Pick. 440 ; Agnew * Edwards v. Baker, 99 N. Car. 258 ; f». Piatt, 15 Pick. 417. StoweU v. Chamberlain, 60 N. Y. 272 ; ^ Buffer t;. Allen, L. R. 2 Ex. 14. Ware v, Percival, 61 Maine, 891. SECT. I.] JUDGMENTS IN PERSONAM. 87 action against the defendant for maliciously signing judgment for £28, the amount of the plaintiff's debt originally, after the present plaintiff, then defendant, had paid £10 on account of the same ; and averring that the present defendant thereupon issued a writ of ca. sa against the plaintiff, indorsed for £32, for the debt of £28 and costs, under which the plaintiff was arrested and compelled, in order to procure his discharge, to pay the full sum indorsed and the sheriff's fees. The declara* tion then alleged that at the date of the judgment only £18 were due, and claimed damages in respect of the £10 and extra fees incurred. The court held that the action could not be maintained while the judgment complained of remained in full force.^ The American rule, on the whole, as we have seen, is to the same effect* It should be added that, in the silence of the record of a jury trial, evidence is admissible to show the ground of the verdict, or what was found ; and the same is true of non-jury trials, and a fortiori of arbitrations.' Thus in Packet Co. v. Sickles the ^ ' Oar judgment,' said Kelly, C. B. not maintain this action, wbilst the ' must be for the defendants. I say so judgment, against which no aveiment with regret, because no doubt if the act can be admitted, stands as evidence of the defendants was knowingly done, that, when judgment was signed, the that is, if they knew that the debt was debt which the then defendant owed was reduced below £20 at the time of sign- £2S, and not £18.' Bramwell, B. did ing the judgment, their act was highly not regret the result ; the plaintiff him- ni^ustiiiable. But we must here de- self had caused the difficulty by not termine the legal question, whiph is pursuing the proper course. He should whether the previous judgment . . . have had the judgment corrected, estops the plaintiff from bringing this * See ante, pp. 76-78. action, the first step in which is to im- * There are many illustrations. See peach that record. It is a simple and Carter v, Shibles, 74 Maine, 278 onanRwemble argument against its main- Packet Co. v. Sickles, 5 Wall. 580 tenance that it is not competent to either Cromwell v. Sac, 94 U. S. 351, S55 party to an action to aver anything either Campbell v, Rankin, 99 U. S. 261 expressing or importing a contradiction Wilson v. Deen, 121 U. S. 525 ; Chicago tothereconl; which, while it stands, is R. Co. v. Schaffer, 123 111. 112, 121 as between them an evidence of incon- Withers v, Sims, 80 Va. 651, 658 trollable verity. . . . The then defend- Allebough v. Coakley, 75 Va. 629 ant now avers that the judgment was Fowlkes v. State, 14 Lea, 14 ; Bryan signed and the execution issued wrong- v. Malloy, 90 N. Car. 508 ; Morgan v. fully and maliciously . . . and on this Burr, 58 N. H. 167 ; McCall v. Jones, averment founds his action against the 72 Ala. 868 ; Pruitt w. Holly, 73 Ala. judgment creditor. But he cannot 869 ; Foye v. Patch, 132 Mass. 105 ; make this averment, and therefore can- Boynton v. Morrill, 111 Mass. 4 ; Hood 88 ESTOPPEL BY EECORa [CHAP. Ill question of the proof of the identity of the contract sued upon with that involved in a former judgment arose ; and it was deter- mined that where the declaration in the former action, as set out in the record, alleged a special contract, without stating whether it was a written or parol contract, and where jurors in that action were brought to testify to the identity of that con- tract with the present, evidence was admissible on the other side that the contract was in parol.^ It is held, however, that while evidence may be offered to identify the issues submitted, it is not proper to prove the course of action of the jury or what was considered by them.* The doctrine in criminal law that no man shall be brought into jeopardy of his life more than once for the same offence,* or, as it is expressed in the Constitution of the United States, V. Hood, 110 Mass. 468 ; Wood v. Jack- clusiveness of the verdict and judgment son, 8 Wend. 10 ; Washington Packet in a former trial between the same par- Co. o. Sickles, 24 How. 388 ; Lawrence ties, when the judgment is used in V. Hunt, 10 Wend. 80 ; Supples v. Can- pleading as a technical estoppel, or is Don, 44 Conn. 424 ; Dutton o. Wood- relied on by way of evidence as conclu- man, 9 Gush. 255 ; Bigelow v. Winsor, sive per se, it must appear by Ihe record 1 Gray, 299. See also Phillips v, Ber- of the prior suit that the particular con- ick, 16 Johns. 136 ; Perkins v. Walker, troversy sought to be concluded was 19 Vt. 144; Gardner v. Buckbee, 3 necessarily tried and determined; that is, Cowen, 121 ; Rurt v. Stemburgh, 4 if the record of the former trial shows Cowen, 559. So, too, the judge may that the verdict could not have been look into the pleadings of the former rendered without deciding the particu- trial, though not fully set out in the . lar matter, it wiU be considered as hav- plea of res judicata. Houstoun r. Sligo, ing settled that matter as to all future 29 Ch. D. 448. See Boone v. St. Paul actions between the parties; and further Foundry Co., 33 Minn. 253. Or into in cases where the record itself does not the authorized reports of a cause. Hood show that the matter was necessarily «. Hood, 110 Mass. 468. Formerly, it and directly found by the jury, evidence seems, evidence was not received to help aliunde consistent with the record may out the record when silent, except per- be received to prove the fact. But even haps in regard to matters without the where it appears from the extrinsic evi- issues. Sintzenick v. Lucas, 1 £sp. 48; dence that the matter was properly with- Manny v, Harris, 2 Johns. 24 ; Mere- in the issue controverted in the former dith V. Santa Clara Assoc., 56 Cal. 178, suit^ if it be not shown that the verdict 181. The burden of proof is of course and judgment necessarily involved its upon the party alleging the decision of consideration and determination, it wiU the fact in question. Pmitt v. Holly, not be condaded.* 73 Ala. 869. ^ Crura v. Boss, 48 Iowa, 483 ; Law- 1 Mr. Justice Nelson, speaking for the renee v. Hunt, 10 Wend. 80. majority of the court, said : ' As we un- ' 4 Black. Com. 885. See United derstand the rule in respect to the con- State« o. ^outeau, 102 U. S. 603. SECT. I.] JUDGMENTS IN PERSONAM. 89 that no one shall be subject for the same offence to be twice put in jeopardy of life or limb,^ has a close relation to this subject of estoppel by former judgment, and may be considered as the criminal law counterpart of the same doctrine. But the doctrine rests upon technical views of jeopardy and not upon the prin- ciple of res judicata,^ and we shall not examine it with that minuteness which we^have brought to the consideration of the preceding matters, but shall be content with a reference to some of the main features of the doctrine. The bar of u former acquittal" or a former conviction arises after the defendant was technically in jeopardy on the former trial ; and jeopardy begins, according to the better authorities, when the petit jury is sworn.' When the jury, being full, is sworn and added to the other branch of the court, and all the preliminary matters of record are in readiness for the trial, the prisoner, according to the better opinion, has reached the jeopardy which protects him from a second trial.* Whatever is done thereafter is immaterial, so far as the question of another trial is concerned ; the legal efiTect of the position of the defendant is to preclude another trial for the same offence. And this, too, though the attorney-general, by consent of the judge, enters a nol. pros., or though he withdraws a juryman and thus puts an end to the trial.^ In some states, however, the jeopardy of the defendant is deemed not to exist until the case has been submitted to the jury for veitlict.^ But if after the case has thus been submitted the trial be terminated by the government for any cause not founded upon the invalidity of the proceed- ings, the efi'ect is a virtual acquittal of the prisoner; and he may so plead upon any new prosecution for the same offence. We shall see in a subsequent part of this chapter that the rules relating to the binding effect of judgments in civil causes are quite different in this particular. The case is different where the trial is terminated by an adju- 1 Con5it. Amend, art 5. ^ Ibid. The reader is referred to tbe ^ Justice V. Commonwealth, SI Va. work cited for a further consideration of S09, 217. the subject The question hardly comes * Bishop, Crim. Law, (§ 856, 857. within the scope of this work, and it * Bishop, Crim. Law, { 858. wiU not be further pursued. » Ibid. 90 ESTOPPEL BY RECORD. [CHAP. IIJ. dicatiou in relation to some defect in the record or proceedings, or in relation to some other preliminary or extraneous matter which prevents a trial upon the merits of the indictment. In such a case upon an adjudication appearing of record, that such fact exists, the rule of twice in jeopardy has no application ; for in truth the defendant has not been in jeopardy at all.^ This doctrine, it will be seen, is in strict accord with that in relation to civil judgments. § 2. Former Verdict : IdeiUity of PoirU in Issue, The class of cases now to be considered is that in which an estoppel arises regardless of any identity in the cause of action ; the only requirement now being that the point in issue, as dis- tinguished from the whole cause, of action, shall be identical in the two cases. In these cases the judgment operates as an estoppel in regard to those matters in controversy upon which, or upon the determination of which, the verdict or finding, as distinguished from the judgment itself, was rendered.^ And the same is true though the former judgment was rendered on demurrer, if the demurrer was based distinctly upon specific facts constituting the merits of the case.' This may for con- venience be called estoppel by 'former verdict' The subject came under consideration from the technical point of view of pleading in Betts v. Starr* in the Supreme Court of Connecticut The plaintiff in that case brought an ' action of ejectment to recover possession of certain land mort- gaged by the defendant to the plaintiff for the security of a certain promissory note specified in the mortgage deed. The defendant offered to prove that the note mentioned in the mortgage was usurious and void. The plaintiff objected on the ground that the defendant was estopped by a former judgment ^ Bishop, Crim. Law, § 873. demurrer to facts alleged concerning the * CromweU v. Sac, 94 U. S. 850, issaanoe of certain municipal bonds, 352 ; Davis v. Brown, ib. 423, 428 ; coupons of which were sued upon, on Bis-sell V. Spring Valley, 124 U. S. 225. which demurrer judgment was rendered See Hanna v. Read, 102 111. 696 ; Tilley overruling the same ; the judgment be- V, Bridget, 105 111. 836; Strang v. Moog, ing held conclusiye iu a subseqfient suit 72 Ala. 460 ; Smith v. Kernochan, 7 between the same parties on other ooa* How. 1 98. pons cut from the same bonda. * Bissell V. Spring Valley, supra, a * 5 Conn. 560. SECT. II.] JUDGMENTS IN PERSONAM. 01 between the parties. From the record of the case referred to it appeared that the present plaintiff had brought suit on the note in question, that the defendant pleaded non assumpsit, that the issue of fact was whether the note had been given upon a usuri- ous consideration, and that a verdict was given for the plaintiff. The debt not having been satisfied in that case, the present action was brought. The court held the judgment conclusive of the matter. Mr. Justice Bristol said that when the cause or object of two actions was different, though the matter in dis- pute was the same in both, the prior judgment was, indeed, no bar to a subsequent action ; but the verdict might still be con- clusive evidence upon the point in dispute. Commenting upon Lee V. Hopkins,^ he said that no one could suppose that, what- ever way the judgment or decree on the bill in chancery in the former action there had gone, it could have been pleaded in bar to the last action (covenant) between the parties. The object of the bill in chancery was to get money refunded, alleged by a purchaser of an estate to have been necessarily expended by him to free that estate from incumbrances which tlie seller was bound to remove. The object of the suit at law was to recover damages for not conveying the military lands which were to have been taken in part payment. Nothing could have been more distinct than the object of the two suits ; and in no event could the decree have been pleaded in bar of the action at law. But the decree in chancery was held conclusive, by way of evidence, that Lee had discharged the. incumbrances upon the estate ; that being the matter directly adjudicated in the chancery suit. Several English cases were also cited in support of the doctrine.* Upon this branch of the subject the Duchess of Kingston's Case * should be refeiTed to. That was an indictment for bigamy against the Duchess of Kingston on the ground that at the time of her marriage with the Duke of Kingston she was the lawful wife of one Hervey, then living. She pleaded in defence a judg- 1 6 Wheat. 109. « Everest k Strode, Estoppel, 410 « ArUti v. Parkin, 2 Burr. 665 ; Rex (full report) ; 20 How. St. Tr. 865 ; 1 V. St. Pancras, Peake, 219 ; Marriott v. Leach C. C. 78 ; 2 Smith's Lead. Caa. Hnmpton, 7 T. R. 269 ; 2 PhUlippe, 679, 6th Eng. ed. Kndence, 18, 19, 4th Am. ed. 92 ESTOPPEL BY RECORD. [CHAP. III. inent obtained by her against Hervey in a suit for jactitation of marriage, — claiming and boasting a marriage with her, — whei'eby she was pronounced a spinster and free from all matri- monial alliance with Hervey * as far as yet appeared.* The case having gone to the House of Lords, the lords spiritual and tem- poral ordered this question among others to be put to the judges, Whether a sentence of the Spiritual Court against a marriage in a suit for jactitation of marriage was conclusive evidence so as to estop the counsel for the crown from proving the said mar- riage in an indictment for polygamy ? As one of the preliminary positions in the opinion of the judges Chief Justice De Grey said that, from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seemed to follow as generally true : first, that the judgment of a court of concurrent jurisdiction, directly upon the pointy is as a plea a bar, or as evidence con- clusive, between the same parties, upon the same matter directly in question in another court ; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter between the same par- ties when coming incidentally in question in another court for a different purposa Having stated that the Spiritual Court had exclusive jurisdiction of questions of marriage, though the tem- poral courts entertained such questions incidentally, and that the latter courts were bound by the adjudications of the former courts between the same parties, he then said that the case was different when the judgments of the Spiritual Court were in- volved in criminal cases ; for then the parties were in all cases different. The king, he said, in whom the trust of prosecuting public offences was vested, was no party to proceedincrs in the Ecclesiastical Court, and could not be admitted to defend, ex- amine witnesses, intervene in any way, or appeal. He then proceeded to say that whatever might be the doctrine in regard to the conclusiveness of a positive adjudication concerning mar- riage when involved in a criminal case, a cause of jactitation was different.^ ^ 'This,' he said, Ms ranked as a matrimonial cause, nnless where the de- cause of defamation only, and not as a fendaut pleads a marrioge ; and whether SECT. II.] JUDGMENTS IN PEBSONAH. 93 Outram v, Morewood^ is a leading case of high authority upon this subject* The case was this : An action of trespass was brought for digging and getting out coals from a mine alleged by the plaintiff to be within and under his close, called Cowclose, The defendants pleaded and showed title by a reg- ular chain in right of the wife from Sir John Zouch ; and they averred that the coals in question were under the lands of Zouch, and were derived by bargain and sale to certain immediate bargainees, from them to the defendant, the wife, and were not within a certain exception named. To this plea the plaintiff replied, and relied by way of estoppel upon a former verdict obtained by him in an action of trespass brought by him against one of the defendants, the wife of the other defendant (she being thi^n sole), in which he declared for the same trespass as now ; to which the wife pleaded and derived title in the same manner as now by her and her husband, and in which she alleged that the coal mines in question in the declaration mentioned were at the time of making the above-mentioned bargain and sale by Zouch part and parcel of the coal mines by that indenture bar- gained and sold. And that upon this point, whether the coal mines dedmed by the plaintiff and mentioned in his declaration it continuesamatrimonialcaase through- such seDtence can he no proof of any- oat, as some say, or ceases to he so on thing to he inferred hy argument from failure of proving a marriage, as others it ; and therefore it is not to he inferred have said, still the sentence has only a that there was no marriage at any time negative and qualified effect ; viz. that or place hecause the court had not then the party has failed in his proof, and sufficient evidence to prove a marriage that the lihellant is free from all matri- at a particular time and place. That nionial contract, as far as yet appears ; sentence and this judgment may stand leaving it open to new proofs of the well together, and hoth propositions he same marriage in the same cause, or to equally true ; it may he true that the any - proofs of that or any other mar- Spiritual Court had not then sufficient riage in another cause ; and if such sen- proof of the marriage specified, and that tence is no plea to a new suit there . . . your lordships may now, unfortunately, it cannot conclude a court which re- find sufilcient proof of some marriage.* oeives the sentence from going into new ^ 8 East, 846. proofs to make out that or. any other ' See among many other cases so marriage. So that, admitting^ the sen- treating Outram v. Morewood, Pittapur tence in its full extent and import, it v. Gam, L. R. 12 Ind. App. 16 ; De only proves that it did not yet appear Mora v. Concha, 29 Ch. D. 268, C. A. that they were married, and not that (affirmed on appeal nom. Concha v, they were not married at all ; and hy Concha, 11 App. Cas. 541). the mle laid down hy Holt, L. C. J. ^Ui 94 ESTOPPEL BY RECORD. [CHAP. III. were parcel of what passed under Zouch's bargain and sale to the persons under whom the wife claimed, an issue was taken and found for the plaintiff, and against the wife. The question was, in the language of Lord EUenborough, * whether the defend- ants, the nusband and wife, were estopped by this verdict and judgment thereupon from now averring (contrary to the title so then found against the wife) that the coal mines now in ques- tion are parcel of the coal mines bargained and sold by the indenture above mentioned.' And it was held that they were.^ ^ In deliyering the judgment of the in 8 Leon. 194, the defendant pleaded court, Lord EUenborough, C. J. said: " that heretofore he himself brought an ' The operation and effect of this find- ejectione firmn against the plaintiff of ing, if it operate at all as a conclusive the same land in which the trespass is bar, must be by way of estoppel. If supposed to be done, and had judgment the wife were bound by this finding as to recover, and demanded judgment if an estoppel, and precluded from aver- against, etc. It was moved that the ring the contrary of what has been so bar was not good because that the de- found, the husband in respect of his fendant had not averred his title ; and privity, either in estate or in law, would the recovery in one action of trespass is be equally bound. Coke, Litt. 852 a. no bar in another," etc. [Staple v. '[See Lindsey v. Danville, 46 Vt 144, Spring, 10 Mass. 72.] Quod curia con- 148.] . . . The question then is; Is the cessit. But as to the matter the court wife herself estopped by this former was clear that the bar was good. And finding ? In Brooke, tit. Estoppel, pi. by Periam : ** Whoever pleaded it, it 15 ; ibid. Estate, 158, it is said to be was well pleaded ; for as by recovery in '* agreed that all the records in which assize the freehold is bound, so by re- the freehold comes in debate shall be covery in ejectione firmfe the possession estopped with the land, and run with is bound." And by Anderson : " A re- the land ; so that a man may plead covery in one ejectione firmse is a bar this as a party, or as heir, as privy, or in another, especially, as Periam said, if by que estate." But if it be said that the party relieth upon the estoppel." by the freehold coming in debate must And afterwards judgment was given be meant a question respecting the same that the plaintiff should l)e barred, in a suit in which the freehold is im- This, it will be recollected, was an ac- mediately recoverable, as in an assize or tion of ejectione firmflB, and not an eject- writ of entry, I answer that a recovery ment moulded and regulated by rules of in any one suit upon issue joined on court as it is at present. The court very matter of title is equally conclusive properly distinguishes there between what upon the subject-matter of such title ; operates by way of bar to a future re- aud that a finding upon title in tres- covery for the same thing, and what by pass not only, operates as a bar to the way of estoppel. That was the case of future recovery of damages for a tres- a mere recovery in ejectione firms? with- pass founded on the same injury, but out title alleged ; and the plaintiff also operates by way of estoppel to any might, in respect of possession or otlier action for an injury to the same sup- varying circumstances of title, be well posed right of possession. In trespass entitled to recover at one time, and not for breaking the plaintiffs close^ reported be so at another. And it is not the SECT. II.] JUDGMENTS IN PERSONAM. 95 The. case of Gardner v. Buckbee ^ will also illustrate the prin- ciple under cousidemtion. That case was an action upon a promissory note. The defence was that the note was given in part payment of a vessel, and fraud was alleged in the sale ; the vessel being at the time rotten and unseaworthy, to the knowl- recovery, but the maUer alleged by the species of judgment, from one in an }iarty, and upon which the recovery pro- action of treii]>a8S to one upon a writ of ceeds, which creates the estoppel. The right, is equally conclusive upon its own recovery of itself in an action of tres- subject-matter by way of bar to future pass is only a bar to the future recovery litigation for the thing thereby decided.* of damages for the same itgury ; but the See Arnold v. Arnold, 17 Pick. 4 ; post, estoppel precludes parties and privies p. 98 ; Morse v. Elms, 131 Mass. 151 ; from contending to the contrary of that Young ». Pritchard, 75 Maine, 518, 617 ; point or matter of fact, which, having Hanna v. Read, 102 111. 596 ; Tilley v. been once distinctly put in issue by Bndges, 105 111. 186 ; Strang v. Moog, them, or by those to whom they are 72 Ala. 460 ; Kirkland r. Trott, 75 Ala. privy in estate or law, has been, on such 821 ; Jenkins v. International Bank, issue joined, solemnly found against 111 III. 462. After having considered them.' In considering the complaint of several earlier cases (Ferrer's Case, 6 Ix>rd Coke, Preface, S Bep., concern- Coke, 7 ; Incledon v. Surges, 1 Show, ing the multiplicity of suits which ' can 27 ; s. c. Comb. 166 ; Evelyn v. Haynes, come to no finite end,* the Lord Chief Surrey Summer Assizes, 1782 ; Kinners- Justioe says : * Neither, however, would ley v. Orpe, 2 Doug. 617), his lordship a verdict and judgment in a real action said: 'None of the cases, therefore, operate by way of bar to future actions cited on the part of the plaintiff, nega- of trespass, or bring the parties " to the tive the conclusiveness of a verdict finite end " wished for by Lord Coke ; found on any precise point once put in because there may be, notwithstanding issue between the same parties or their the verdict and judgment in the real privies. The cases adverted to by Lord action, even in that which is most con- Holt, and which have been fully ex- clnsive upon the right (I mean a writ of plained and enforced by the defendants* right itself) a right of possession derived counsel, together with the other author- under the owner of the inheritance in fee ities on the subject of protestation and simple, or those under whom he claims; estoppel (cited from Bro. Abr., Protes- which may enable a plaintiff in trespass tation, pi. 9 ; Fitzherbert, Estoppel, pi. to recover for an injury to his possession 20), are in our opinion, as well as upon done by the very pecson in whose favor the reason and convenience of the thing the absolute right of property shall have and the analogy to the rules of law in been so afiirmed in a real action. A other cases, decisive that the husband judgment, therefore, in ea6h species of and wife, the defendants in this case, action is final only for its own proper are estopped by the former verdict and purpose and object, and no further. The judgment on the same point in the ac- jndgment in trespass affirms a right of tion of trespass, to which the wife was possession to be, as between the plain- a party, from averring that the coal tiff and defendant, in the plaintiff at the mines now in question are parcel of the time x>f the trespass committed. In the .coal mines bargained and sold by Sir real action it affirms a right to the free- John Zouch ; and consequently that the hold of the land to be in the demandant plaintiff ought to recover.' at the time of the writ brought. Each ^ 8 Cow. 120. 96 ESTOPPEL BY BECORD. [cHAP. III. edge of the plaintiff. The latter admitted that the note in ques- tion was one of two notes, for the same amount, given as the consideration in the sale of the vessel. The defendant offered to prove in bar of the plaintiff's demand that the plaintiff had impleaded him in the Marine Court of New York City upon the other promissory note ; that upon the trial of that suit the fraud of the plaintiff in the sale was the only point in question ; and that judgment had been given for the defendant on the ground that the sale was fraudulent. The evidence W6is objected to on the ground that the cause of action was different in the former suit from that in the present, being upon another note. The court below ruled that the evidence was not sufficient to bar the plaintiffs demand ; but upon appeal it was held that the evi- dence was conclusive. Mr. Justice Woodworth, speaking for the court, said it was clear that the question of fraud was tried be- tween the parties in the Marine Court on one of the notes given in payment of the vessel. That court had concurrent jurisdic- tion ; and the law (as stated on a previous page) was well settled that the judgment of a court of concurrent jurisdiction, directly upon the point, was as a plea a bar, or as evidence it was conclusive between the same parties, upon the same matter directly in question in another court.^ An illustration of this subject is found again in Edgell v. Sigerson.2 That, too, was an action upon a promissory nota The plaintiff's petition stated that he had formerly brought suit to recover an instalment of interest on the same note ; that the defendant then pleaded that the note had been fraudulently altered in regard to the payment of interest, but that the plain- tiff recovered judgment The defendant now admitted the exe- cution of the note, but defended on the ground of the same alleged fraudulent alteration, insisting that the note had thereby become void. But the Supreme Court overruled the defence. Mr. Justice Eichardson said that the integrity of the note was necessarily and directly in issue in the suit brought to recover the annual instalment of interest ; and the judgment in that 1 Duchess of Kingston's Caae, 20 U. S. 626 ; Cromwell v. Sac, 94 TJ. 8. How. St. Tr. 865 ; 2 Smith's Lead. Cas. 850. 679, 6th Eog. ed. ; WUson v, Deen, 121 ^ 26 Mo. 683. B£CT. II.] JUDGMENTS IN P£BSONAM. 97 case, having been rendered by a court of competent jurisdiction, determined the question in relation to the alteration of the note, and was conclusive in the present case.^ In a case in Kentucky ^ it appeared that the defendant in a former action for work and labor done had pleaded a special contract with the plaintiff in regard to the services, and had averred a failure by the plaintiff to comply with it ; but that upon issue joined on the point verdict and judgment were given for the plaintiff. The latter now brought the present action upon the special contract which the defendant had relied upon in the former suit ; but the court held that the action could not be maintained. Mr. Justice Duvall said that on the former trial the plaintiff had not only repudiated the contract now sued upon, but he had actually denied its existence upon the record, and had only been enabled to obtain a verdict by that denial. It was a well-established rule of law that every material fact involved in an issue must be regarded as determined by the final judgment in the action, so as not to be a subject of trial in any subsequent proceeding between the same parties. The principle under consideration is enforced again by the effect given to a judgment for the plaintiff in ejectment in a subsequent action by him for mesne profits. It was held by all the judges in the leading case of Aslin v. Parkin ^ that the tenant was concluded in such a case by the judgment, and could not controvert the title ; and that consequently he could not controvert the plaintiff's possession, because his possession was part of his title.* The plaintiff*, to entitle himself to recover in an ejectment, must show a possessory right not barred by the 1 See, in regard to a common defence 6S Md. 402, 420 (that the rule applies to a series of notes, Felton v. Smith, 88 only to the tenn laid in the declaration). Ind. 149, 152 ; Hazen v. Reed, 30 Mich. So, too, judgment for the plaintiff in 8S1 ; ante, pp. 85, 86. replevin conclusively establishes the ^ Henley v. Foley, 18 B. Mon. 519. plaintiffs right .to immediate possession * 2 Burr. 665. See Harris v. Mul- at the time of the. suit. Allen v. But- kern, 1 Ex. D. 31, 35. man, 138 Mass. 586. It does not show ^ Killer. Ege, 82 Penn. St. 102; Man that the taking was unlawful, for the 9. Drexel, 2 Barr, 202 ; Benson v. Mats- action lies for unlawful detention as dorf, 2 Johns. 369 { Jackson o. Randall, well as for unlawful taking. Ibid.; 11 Johns. 405 ; Emerson v. Thompson, Whitman v. Merrill, 125 Mass. 127. 2 Pick. 473, 487 ; Wakli r. Mclntire. 7 98 ESTOPPEL BY RECORD. [CHAP. III. Statute of Limitations. But of course the judgment, like all others, concluded the parties only in regard to the subject- matter of it ; beyond the time laid in the demise it proved nothing at alL The identity of the particular points in controversy in the two cases is often a matter for critical discrimination. Arnold V. Arnold ^ is an illustration ; a writ of right, to which the defendant pleaded an action of trespass quare clausum fregit brought by one under whom he claimed, against the present plaintiff, and judgment against the plaintiff in respect of the same land. The plea alleged that the only question in issue there was the same as that now in controversy, namely, the right of property. 'There was also a plea of a former writ of entry sur disseisin between the parties to the first action men- tioned. Both defences were overruled on the ground that the questions at issue were different.^ * 17 Pick. 4. of trespass and entry before bronght, ^ Mr. Justice Putnam, who delivered and that the new demandant had no tiie opinion of the court, said : ' The er- legal impediment from giving in evi- ror lies at the threshold. It is in the dence, in support of the issues joined in assumption 'that the same cause of ac- those actions, the same matters that he tion was tried in the action of trespass now has to establish his right of prop* quare clausum upon an issue of soil and erty. But how does that appear judi- freehold, and the same cause of action cially ? The* plea avers that the fact was tried in the writ of entry sur dis- submitted to the jury in the action of seisin upon the issue of nul disseisin, trespass, and on which the jury found as is to be tried in the writ of right ; a verdict, was the mere right of prop- an assumption which roust strike the erty. The issue to be tried was upon mind of every lawyer as extraordinary, the soil and freehold ; and the verdict Who needs to be told that the plea of followed the issue. If the verdict had soil and freehold would be supported by been upon the mere right of property, a defendant who should prove an estate it could not have warrant«d a judgment for his life in the locus in quo, or that for the prevailing party on the issue ot in a writ of right the right of property soil and freehold ; for it might be that is in question ? Who needs to be told the plaintiff might have the right of that the actions of trespass quare clau- property, and his adversary might have sum fregit, and the various writs of the right of possession. A man enti- entry, and the judgments upon them, tied to the herbage for the current sea- affect only the right of possession and son might well maintain trespass quare entry, and do not conclude as to the mere clausum fregit against the owner of the right ? It will be answei-ed that nobody fee. The judgment in such action doubts these general propositions, but would conclude the parties as to the that the pleas in bar aver that the very rights drawn into question by the plead- right of property was tried in the actions ings, but no further. ... In every SECT. II.] JUDGMENTS IN PEBSONAM. 99 The rule in these and other cases, to state it formally, is that a matter of fact^ or generally speaking of law, once adjudicated by a court of competent jurisdiction, concurrent or exclusive, however erroneous the adjudication, may be relied upon &s an estoppel in any subsequent collateral ^ suit in the same or any other court, at law, in chancery,^ in probate, or in admiralty, when either party, or the privies of either party, allege anything inconsistent with it ;^ and this too whether the subsequent suit is upon the same or a different cause of action.^ The cases upon this subject are veiy numerous.^ Nor does it matter that action the yerdict is conclusive as to the while in the writ of right the demand- sabject^matter of the suit, and any ant counted upon, a fee simple and a matter particularly put in issue and deforcement. It was true, indeed, that found by the jury ; and it will not be the question was concerning the same eompetent for a party in any other ac- lands ; and in this sense only was the tion to deoy or plead anything to the same matter tried again, as each pre- contrary of what has been so found and sented a different cause of action, adjudicated. Thus, if the demandant in ^ A second api>eal of a cause to the a writ of entry has' a judgment against same court is ooUateral to the first, with- bim by the tenant in a writ of trespass in the rule. Questions decided on the quare clausum fregit upon an issue of first appeal cannot be opened on the soil and freehold, he cannot be per- second. New York Ins. Ck). v. Clemmitt, mitted to say that, at the time when the 77 Ya. 866 ; Miller v. Cook, lb. S06 ; action of trespass was commenced, the Supervisors v, Kennicott, 94 U. S. 498 ; soil and freehold were not in the tenant. Logansport v, Humphreys, 106 Ind. So, if the tenant in a writ of right had 146 ; Chouteau r. Gibson, 76 Mo. 88, before prevailed against the demandant 51 ; Davis v. McCorkle, 14 Bush, 746. in a writ of entry on a plea of nul dis- ^ The fact that a plaintiff is ren- seisin, the demandant cannot be per- dered incompetent to testify in a cause mitted to say, contrary to the verdict, by the death of the opposite party, that the tenant had disseised him. He against such party's personal represent- must go to trial upon his writ of right ative, is no reason why the judgment with the disadvantages arising from the should not be conclusive, even in equity, former verdict against him ; and he Putnam v, Clark, 84 N. J. £q. 682. must establish his right of property in ' Bigelow v. Winsor, 1 Gray, 299, the writ ot right (which he was not 801 ; Fuller v. Eastman, 81 Maine, 284, caUed upon to establish in the former 286. action), or he cannot prevail.* Refer- * Quoted with approval, Corrothers ring to ihe language of Ferrer's Case, ». Sargent, 20 W. Va. 861, 867 ; Poole 6 Coke, 7, the learned judge said it was v. DUworth, 26 W. Va. 688, 693 ; not perfectly exact to say that the same McCoy v. McCoy, 29 W. Va. 794, right, or the same matter, was tried in 807. the higher action, in cases of consecu- * Balkum v. Satcher, 61 Ala. 81 ; .tive remedies, which had before been Strang v. Moog, 72 Ala. 460 ; Wilkins tried in the lower action. The causes v. Judge, 14 Ala. 186 ; May v. Marks, of action in trespass quare clausum fre- 74 Ala. 249 ; Pollard v. Hanrick, ib. gity and in the writs of entry, related to 384 ; Baker v, Barclift, 76 Ala. 414 ; the ri|^t of yanemon. and of entry ; Moi^gan v. Burr, 68 N. H. 167 ; Muel- 100 ESTOPPEL BT RECORD. [CHAP. in. the former judgment was rendered after the second action was begun,^ though formerly the rule was otherwise in England;' nor that it is in conflict with another judgment between other parties.* But though verdict estoppels apply in a different as well as in the same cause of action^ it must not be supposed that the parties would be estopped by a judgment in one cause of action from disputing, in another cause of action, the doctrines of law applied in the first The facts decided in the first suit cannot be disputed, and for the purpose of the conclusiveness of those facts,' but no further, the law applied must be accepted.^ Thus, if a decree in a suit to declare a mortgage invalid proceed upon the constitutionality of a statute, the parties cannot after- wards deny the validity of the statute in question, when the mortgagee attempts to foreclose * But it could hardly be true that they could not raise the question again in a suit upon a different subject-matter;^ and the same would appear to Aye the case with regard to any other question concerning the state ler V. Henning, 102 III. 646 ; Jenkins v. Maine, 100 ; Bunker v. Tufts, 57 Maine, International Bank, 111 111. 462 ; Yeo* 417 ; Garwood v. Garwood, 29 Cal. 514 ; man v. Younger, 83 Mo. 424 ; Clark v, French v. Howard, 14 Ind. 455 ; Shut- Wiles, 54 Mich. 323 ; Kelley v. Donlin, tlesworth v, Hughey, 9 Rich. 887 ; 70 III. 878 ; State v, Ramsburg, 43 Md. Stewart v. Dent, 24 Mo. Ill ; Walker 825 ; De Proux v, Sargent, 70 Maine, v. Mitchell, 18 B. Mon. 541 ; Bobe o. 266 ; Adams V. Cameron, 40 Mich. 506 ; Stickney, 36 Ala. 482. Tilson V. Davis, 32 Gi-att. 92 ; Western ^ Jenkins v. International Bank, 127 M. Co. V, Virginia Coal Co., 10 W. Va. U. S. 484. 250 ; Hendricksou r. Norcross, 4 C. E. ^ Houstonn v. Sligo, 29 Ch. D. 448 ; Green, 417 ; Baldwin v. McCrea, 38 The Delta, 1 P. D. 398, 404 ; Martin v. Ga. 650 ; Tioga R. Co. v. Blossburg & Walker, 60 Cal. 94. C. R. Co., 20 Wall. 137 ; Aurora City » Scotland v. Hill. 112 U. S. 183. V. West, 7 Wall. 82 ; Beloit v. Morgan, * Bernard v. Hoboken, 8 Dutch. 412. ib. 619 ; Goodrich v. City, 5 Wall. 566 ; See Boyd r. Alabahia, 94 U. S. 645, Doyle V. Reilly, 18 Iowa, 108; Painter v. 648. This includes the constitutional- Hogue, 48 Iowa, 426 ; Allie v. Schmitz, ity of the law, as, e. g. an insolvency 17 Wis. 169 ; Heath v. Frackelton, 20 statute under which one has taken pro- Wis. 820 ; Smith r. Way, 9 Allen, 472 ; ceedings. Fogler v. Clark, 80 Maine, Jordan v. Faircloth, 84 Ga. 47 ; Dema- 237, and cases cited. rest V. Darg, 32 N. Y. 281 ; Eimer v, * McDonald v. Mobile Ins. Co. , 66 Richflrds, 25 111. 289 ; Babcock v. Camp, Ala. 858. 12 Ohio St. 11 ; Bell t>. McCulloch, 81 •See Boyd v, Alabama, 94 TJ. S. 646, Ohio St. 897 ; Sergeant v. Ewing, 86 648, where the point is not decided. Penn. St 156 ; Cabot v, Washington, The subject is not without its diffi- 41 Vt. 168; Lynch v. Swanton, 58 culties. See chapter 14y note. - SECT, n.] JUDGMENTS IN PERSONAM. 101 of the law.^ What is law for one must be law for all ;* and there could be no advantage in extending the doctrine of res judi- cata to such cases. The court might deem it best to rely upon the maxim ' stare decisis * indeed ; but that is another thing.' It is to be observed that we have been speaking of verdicts at common law, or in cases in which the common law effect of the verdict is produced. Verdicts out of equity, e. g. stand upon a difl'erent footing, and might not be held conclusive in another suit between the parties.^ Judgment against several defendants cannot, however, deter- mine the rights of the defendants inter sese. Thus, if judgment be given against several co-contractors, and satisfaction is ob- tained by one of them, he cannot use the judgment as binding evidence against the others of their liability to him to contribute. No such point was decided in the former action ; ^ the judgment decided the existence and legality merely of the demand. The paHies must be adversary.* So, too, though executora represent - all parties in interest in a will, in proceedings for the probate thereof, still if two or more of the legatees or devisees have ad- ■ ^ Bernard v, Hoboken, 8 Dutch, bod, Curtis, Woodbury, and Spragne, 412. JJ.; Pike r. Potter, U. S. Circ. Court, s See South Ottawa v. Perkins, 94 R. I. Dist. 1859, before Clifford and U. S. 260 ; post, chapter 21, § 2. Pitman, JJ. ; 2 Dan. Oh. Pr. 8d Am. * See the distinction as put in Stiyker ed. 1115 and notes.* See also Allen V. Goodnow, 123 U. S. 527, 588, 539 ; v. Blunt, 8 Story, 746 ; Franklin v. Chapman v. Goodnow, ib. 540 ; Litch- Green, 2 Allen, 519 ; Ross v. New Eng- field 9. Goodnow, ib. 549 ; McCormick land Ins. Co., 120 Mass. 118 ; Ex parte V. Bauer, 120 111. 578. Moigau, 2 Ch. D. 72. In accordance * Burlen «. Shannon, 99 Mass. 200, with this intimation, the court, in Bur- 206. In this case Mr. Justice Foster, len v. Shannon, supra, declined to give speaking for the court, said: * The ver- to a verdict out of equity in another diet [in an equity cause] is treated as cause the same credit as would be given weighty, but not always as conclusive to a verdict at law. The difficulty, evidence. In England and in many however, arose from the uncertainty of American courts the verdict* is some- the vendict times wholly disregarded, and a decree ^ McCrory r. Parks, 18 Ohio St. 1; is entered in opposition thereto, where Leinkauff v. Hunter, 76 Ala. 194; Dun- the court is clearly satisfied that the can r. Holcomb, 26 Ind. 878 ; Buffing- verdict is contrary to the truth as es- ton v. Cook, 85 Ala. 812., See Lloyd v. tablished by the whole body of evidence Barr, 11 Penn. St. 41. •in the cause. Ansdell v, Ansdell, 4 • Ibid.^ Beveridge v. New York R. Mylne & C. 449; Day v. Hartshorn, Co., 112 N. Y. 1» 19; Leinkauff «. U. S. Dist Court for R. I. 1855, before Mnnter, 76 Ala. 194. See Gushing v. Pitman, J. quoting the opinions of Nel- Laird, 107 U. S. 69, 80. 102 ESTOPPEL BT RECORD. [CHAP. in. verse claims under the wiU» no decision on the question of pro- bate will bind such claimants inter se.^ Where, however, the respective rights of the parties are drawn in issue by them and adjudicated, the judgment is conclusive between them.^ The general rule above stated ^ is subject to one or two quali- fications of importance. It is held that when a complainant in equity seeks the means of carrying into effect a decree or judg- ment rendered in another litigation (as a g. between persons under whom the present parties claim) but not providing such means of execution, it devolves upon the complainant to show that the decree or judgment is right So Lord Bedesdale and the House of Lords held in the year 1820 ; so the Lord Keeper had declared in the year 1700 ; and so it has been laid down by other and later authorities.* The former decree or judgment, in this view, is to be taken unquestioned only when it can be carried into effect by virtue of some order or direction contained 1 De Mora «. Ck>ncha, 29 Oh. D. 268, was said in answer to the objection that 803, affirmed on appeal nom. Concha v. certain trustees and others were aU de- Concha, 11 App. Cas. 541. fendants to a former suit, and that be- ^ Harmon v. Auditor of Public Ac- tioeen them no issue was raised and no oounts, 128 lU. 122 ; Parkhnnt v. Bur- adversary proceedings had. dell, 110 N. Y. 886; Graham v. Railroad < p, iqI. Co., 8 Wall. 704 ; Corcoran t>. Chesa- * Wadhams v. Gay, 78 111. 416 (con- peake Canal Co., 94 U. S. 741 ; Louis sent decree ; see, concerning this litiga- V, Brown, 109 U. S. 162, 167; Leavitt tion, 8 Chic. L. News, 189) ; Gay ». i;. Wolcott, 05 N. Y. 212 ; Demarest v. Parpart, 106 U. S. 679, 699 ; Jenkins Darg, 82 N. Y. 281; Brown r. Mayor, v. International Bank, 111 lU. 462, 471; 66 N. Y. 891 ; Torrey v. Pond, 102 Hamilton «. Houghton, 2 Bligh, 169, Mass. 355. See Gushing v. Laird, 107 182, 193 ; Johnson «. Northey, Finch, U. S. 69, 80. * In chancery suits, Prec Ch. 184. See also Lawrence v, where parties are dten made defend- Bemey, 2 Rep. in Ch. 127; O'ConneU ants because they wUl not join as plain- v. McNamars, 8 Dru. ft War. 411; tiffs, who are yet necessary parties, it Bean «. Smith, 2 Mason, 252, 299 ; has long been settled that adverse in- Gibson «. Rees, 50 111. 883, 406, 410 ; terests as between co-defendants may Egerton v. Muse, 2 Hill, Eq. (S. Car.) be passed upon and decided ; and if the 51 ; Lamb v. Gatlin, 2 Der. ft B. Eq. parties have had a hearing and an op- 87. Comp. the older view of foreign portunity of asserting their rights, they judgments : * When you call for my as- are concluded by the decree as far as it sistance to carry into effect the decision affects rights presented to the court and of some other tribunal^ you shall not passed upon by its decree.' Corcoran have it if it appears that you are in the V. Chesapeake Canal Co., 94 U. S. 741, wrong.' Lord Hardwicke, 1 Eq. Cas. quoted in Louis v. Brown, 109 U.* S. Abr. 83, pi. 8, quoted by Buller, J. in 162, 167, and again in Harmon v. Au- €kdbraith v, Neville, 1 Doug. 5, note, ditor of Public Accounts, supra. That But see chapter 6. SECT. lU.] JUDGMENTS IN PERSONAM. 108 withiu itself. At all events, if by the pleadings of a party en- titled to the benefit of a judgment, he, in seeking by a proceed- ing ab extra to enforce it, opens the judgment, it is open for general purposes, in the second proceeding; and the party open- ing it cannot insist upon the rule of res judicata, if the record of the judgment disclose error such as shows that there was no cause of action whatever.^ So, too, it has recently been held that when a person partly opens in his pleadings the facts of a judgment on which he relies, he cannot object to the other party's treating the whole case as opened.^ We have now ascertained the nature of the pleas of former judgment and of former verdict, and the distinction between them; the foriner operating as a bar to subsequent actions founded on the same demand; the latter operating as a bar to the further litigation of the special findings of the jury irre- spective of the nature of the cause of action. These distinctions now disappear ; and we shall have no further occasion to present the divisions separately, or by special designation. § 3. The Special Effect and Operation of Judgment and Verdict Estoppels. First, of merger. It is a fundamental rule of law that a judgment for the plaintiff, if not void, merges his cause of action into the higher claim of a judgment debt. That is, it destroys the original demand, and the result is that if the plaintiff for any reason should sue thereon in a domestic court, or in a court of a sister state,^ he could be met with a plea of the former judgment as well as if that judgment had gone against him.^ And it matters not that the judgment is void- able ; it is still binding for the purpose of all collateral actions, ^ Brownsrille v. League, 129 U. S. 493, 505, explaining, at pp. t>04, 505, Harehman «. Knox, 122 U. S. 306, 819. That is the better role. « Weed V, Burt, 78 N. Y. 191. > Bank of United States v. Mer- ehants' Bank, 7 Gill, 415 ; McGilvray V. Arery, 30 Vt. 538 ; Green v. Starr, 52 Vt. 426 ; Hatch v. Spofford, 22 Conn. 485 ; Walsh v. Durkin, 12 Johns. 100. But see Mumfbrd v. Stocker, 1 Cowen, 178 ; Griswold ». Hill, 2 Paine, 492 ; Andrews v. Smith, 9- Wend. 53. Comp. the rale of the Roman law. Ante, p. 40. * Schuler r. Israel, 120 U. S. 506. 104 ESTOPPEL BY RECORD. [CHAP. lU. of which a suit upon the original cause of action would be one. If it should be desirable to bring a new action, suit should be brought upon the judgment already obtained by the plaintiff. Care, however, should be taken before proceeding ; for a new judgment would, it has been held, not only merge and destroy the old one, but wouldhave the same effect upon all rights, such as liens upon land, created by the first judgment.^ And there is authority for the proposition that this would be true even where the judgment sued upon was rendered (not in a foreign country, but) in a sister state.^ Neither of these positions, however, is settled, as the cases cited in the notes below show. In those which dispute the rule of merger it is pointed out that that rule applies only in favor of a higher obligation over a lower, as where a sealed obligation is given for a simple contract debt ; while in the case of the two judgments the obligations are of the same degree.* A special phase of the doctrine of merger must now be con- sidered. Tliere has been some conflict of authority concerning the question whether a judgment against one of several joint contractors is a bar to a suit upon the same contract against all the co-contractors, or against all except the one first sued. The question received most thorough consideration in the English Court of Exchequer in the year 1844 in the case of King v. Hoare ;^ and though that case is in apparent conflict with one of the decisions of the Supreme Court of the United States * by Chief Justice Marshall, the rule laid down in the first-Tiamed case has become well settled with us.^ The English case re- 1 Gould V. Hayden, 68 Ind. 448, cit- » See Story, Conflict of Laws, p. 828, ing Piirdy v. Doyle, 1 Paige, 558, 561 ; 8th ed., criticising the rule of merger in Denegre v. Hann, 18 Iowa, 240 ; Whit- such cases, ing V. Beebe, 7 Eng. (Ark!) 421, 54d ; « 13 Mees. & W. 494. Chitty 17. Glenn, 8 T. B. Mon. 424 ; » Sheehy v, Mandeville, 6 Cr. 258. Frazier v. McQueen, 20 Ark. 68 ; Neale * A judgment in a justice's court in V, Jeter, ib. 98 ; Bank of United States Michigan in a suit against one of two V. Patton, 5 How. (Miss.) 200; Brown joint debtors does not merge the de- V. Clarke, 4 How. 4. niand. The cause may be sued over 3 Gould V. Hayden, 68 Ind. 443. again against both. Holcomb v. Tifty Contra, Weeks V. Pearson, 5 N. H. 824. 54 Mich. 647; Bonesteel v. Todd, 9 See Bank of Old Dominion v, Allen, 13 Mich. 871. Rep. (Va.) 509. SECT. III.] JUDGMENTS IN PEfiSONAM. 105 ferred to was an action of debt against Hoare> who pleaded that the contract alleged in the declaration was made by the plaintiff with the defendant and one Smith jointly, and not with the defendant alone, and that subsequently the plaintiff re- covered a judgment against Smith for the same debt ; and the plea was sustained.^ ^ 'It is remarkable/ said Parke, B., cause of action is changed into matter ' that this question should never have of record, which is of a higher nature, been actually decided in the courts of and the inferior remedy is mei^ged in this country. There have been appar- the higher. This appears to be equally ently conflicting dicta upon it. Lord true where there is but one cause ofac- Tenterden, in the case of Watters v, turn, whether it be against a single per- Smith, 2 Baru. & Ad. 892, is reported son or many. The judgment of a court to have said that a mere judgment of record changes the nature of that against one would not be a defence cause of action, and prevents its being for another. My brother Maule stated, the subject of another suit ; and the in that of Bell v. Banks, S Man. ft G. cause of action being single, cannot 267, that a security by one of two afterwards be divided into two. Thus, Joint debtors would meige the remedy it has been held that if two commit a against both. In the case of Lechmera joint tort the judgment against one is V. Fletcher, 1 Crorop. & M. 684, Bay ley, of itself, without execution, a sufficient B. strongly intimates the opinion of bar to an action against, the other for the Court of Exchequer that the judg- the same cause. Broome v. Wooton, ment against one was a Wr for both Yelv. 67 ; s. c. Cro. Jac. 78 ; Moore, of two joint debtors, though the point 762. (a) And though in the report in was not actually ruled, as the case did Yelverton expressions are used which at not require it. In the absence of sny first sight appear to make a distinction positive authority upon the precise between actions for unliquidated dam- question, we must decide it upon prin- ages and debts, yet upon a comparison eiple and by analogy to other author!- of all the reports it seems clear that the ties ; and we feel no difficulty in coming true ground of the decision was not the to the conclusion that the plea is good, circumstance of the damages being un- If there be a breach of contract, or liquidated. Chief Justice Popham, Cro. wrong done, or any other cause of action Jac. 74, states the true g^und. He by one against another, and judgment says : "If one hath judgment to re* be recovered in a court of record, the cover in trespass against oim, and dam judgment is a bar to the original cause ages are certain " (that is, converted of action, because it is thereby reduced into certainty by the judgment), "al- to a certainty, and the object of the though he be not satisfied, yet he shall suit attained so far as it can be at that not have a new action for this trespass. stage ; and it would be useless and By the same reason, e contra, if one vexations to subject the defendant to hath cause of action against two and another suit for the purpose of obtain- obtain judgment against one, he shall ing the same result. Hence the legal not have remedy against the other ; maxim, transit in rem judicatam, the and the difference betwixt this case {n) This doctrine has recently been reaffirmed in England. Brinsmead v. Harrison, L. R. 6 C. P. 584. But the rule is otherwise in America. Post* pb 112. 106 ESTOPPEL BY BECORD. [CHAP. III. In accordance with the principle in King ff, Hoare it was held, where a vendor brought an action and recovered judgment and the case of debt and obligation obtaining judgment against the other, against two is because there every of If he can, then he may plead in bar the them is chargeable and liable to the judgment against himself ; and if that entire debt ; and therefore a recovery be not a bar, the plaintitf might go on against one is no bar against the other either to obtain a joint judgment against until satisfaction." And it is quite himself and his co-contractor, so that clear that the chief justice was refer- he would be twice troubled for the same ring to the case of a joint and several cause ; or the plaintiff might obtain oblig-ation, both from the argument of another judgment against the co-con- the counsel as reported in Cro. Jac. and tractor, so that there would be two the statement of the case in Yelverton. seimrate judgments for the same debt. We do not think that the case of a joint Further, the case would form another contract can in this respect be distin- exception to the general rule that an guished from a joint tort. There is but action on a joint debt barred agaiust one cause of action in each case. The one is barred altogether ; the only ez- party injured may sue all the joint tort- ception now being when one has pleaded feasors or contractors, or he may sue matter of personal discharge, as bank- one, subject to the right of pleading in ruptcy and certificate. It is quite clear, abatement in the one case and not in indeed, and was hardly disputed, that the other ; but for the purpose of this if there were a plea in abatement both decision they stand on the same footing, must be joined, and that, if they were, Whether the action is brought against the judgment pleaded by one would be one or two, it is for the same cause of a bar for both ; and it is impossible to action. The distinction between a joint hold that the legal effect of a judgment and several contract is very clear. It against one or two is to dei^nd on the is argued that each party to a joint con- contingency of both being sued, or the tract is severally liable, and so he is in one against whom judgment is not ob- one sense, that if sned severally, and he tained being sued singly and not plead- does not plead in abatement, he is liable ing in abatement. These considerations to pay the entire debt ; but he is not lead us, quite satisfactorily to our own severally liable in the same sense as he minds, to the conclusion that when is on a joint and several bond ; which judgment has been obtained for a debt, instrument, though on one piece of as well as a tort, the right given by the parchment or paper, in effect compiises record merges the inferior remedy by the joint bond of all and the several action for the same debt or tort against bonds of each of the obligors, and gives another party. During the argument a different remedies to the obligee. An- decision of the Chief Justice Marshall, other mode of considering this case is in the Supreme Court of the United suggested by Bayley, B. in the case of States, was cited as being contrary to Lechmere v. Fletcher, 1 Cromp. & M. the conclusion this court has come to ; 684, and was much discussed during the case is that of Sheehy v. Mandeville, the argument, and leads us to the same 6 C*ranch, 253. We need not say we conclusion. If there he a judgment have the greatest respect for every de- aguinst one of two joint contractors, cision of that eminent judge, but the and the other is sued afterwards, can reasoning attributed to him by that re- he plead in abatement or not? If he port is not satisfactory to us ; and wo cannot, he would be deprived of the have since been furnished with a report right by the act of the plaintiff, without of a subsequent case, in which that au- his privity or concurrence, in suing and thority was cited and considered, and SECT, m.] JUDGMENTS IN PERSONAM. 107 against one of several partners, that the partnership debt was merged in the judgment, so that there could be no proof upon it against the joint estate in bankruptcy ; the partners having failed, and execution upon the judgment having been defeated by an adjudication in bankruptcy.^ in which the Supreme Judicial Court of trine of merger (even admitting that a Massachusetts decided that, in an ac- judgment against one of several joint tion against two on a joint note, a jndg- obligors would terminate the whole ob- ment against one was a bar.' Wiuxl v, ligation, so that a distinct action could Johnson, 13 Mass. 148. not afterwards be maintained against In the case referred to, Sheehy v. the others, which is not admitted) can MandeviUe, 6 Cranch, 25S, decided by be applied only to a case in which the Chief Justice Marshall, the facts and original declaration was on a joint cove- iflsue were these : The plaintiff, having nant, not to a case in which the decla- aold goods to R. B. Jamesson, one of ration in the first suit was on a sole the defendants, took his note for the contract.' This decision has been criti- Bum due. Afterwards suspecting that cised by other courts than those above the other defendant, Mandeville, was a mentioned. See Robertson v. Smith, partner, he instituted this suit on the 18 Johns. 459 ; Trafton v. United States, note against the two, charging the note 3 Story, 646 ; Brown v. Johnson, 13 to have been made by both trading un- Gratt. 644. But perhaps it may be der the firm name of R. B. Jamesson. sustained on the ground that the note Mandeville, among other things, pleaded contract was regarded as several as well that judgment had been rendered on the as joint. In a subsequent case in the note against Jamesson ; and the qoes- Supreme Court of the United States, tion arose under this plea whether that United States v. Price, 9 How. 83, Mr. judgment was a bar to the present suit, Justice Grier, who was speaking for as against Mandeville. Marshall, C. J. the court, said that Sheehy v, Mande- speaking for the court, said : ' Were it ville, ' though sometimes criticised and admitted that this judgment bars an doubted in other courts, goes no further action against Robert B. Jamesson, the than to decide that where one partner inquiry still remains, if Mandeville was is sued severally on a joint or partner- originally bound, if a suit could origi- ship contract, and judgment obtained nally be maintained against him, is against him, it is no bar to a suit against the note, as to him, also merged in the the other, because this contract was not judgment? Had the action in which merged in the judgment, and because judgment was obtained against James- the first judgment was founded on a son been brought against the firm, the several, not a joint, promise.' The Eng- whole note would most probably have lish doctrine in King v. Hoare, lately re- mei^ged in that judgment. But that ao- affirmed in Kendall v, Hamilton, 4 App. tion was not brought against the firm. Cas. 504, may now be considered as well It was brought against Robert Brown settled here at common law. Sessions v. Jamesson singly, and whatever other Johnson, 95 U. S. 347; United States v. objections may be made to any subse- Ames, 100 U. S. 35, 44; Mason v. Eldred, quent proceedings on the same note, it 6 Wall. 281; Gibbs v. Bryant, 1 Pick, cannot be correctly said that it is car- 118: Robertson v. Smith, 18 Johns. 459; ried into judgment as respects Mande- Clinton Bank v. Hart, 5 Ohio St. 88 ; ville. If it were, the judgment ought Bowen v. Hastings, 47 Wis. 232, 236. in some manner to bind him, which ^ Ex parte Hig(;ins, 3 De O. & J. 33. most certainly it does not. The doc- See Peters p, Sanford, 1 Denio, 224. 108 ESTOPPEL BT RECORD. [CHAP. m. The doctrine of King v, Hoare must not, however, be taken as unlimited. Several cases ^ of high authority have recently touched upon the subject, and fortified an exception which appears to have long prevailed in equity, *to the effect that when one member of a firm h$is died, though at law the debt would from that time forth be only the debt of the survivors, in equity recourse might always be had to the estate of the de- ceased partner/ ^ It was accordingly held in the case last cited that judgment against the surviving partner will not bar pro- ceedings against the estate of the deceased partner ; and that it matters not which is first made liable. It is not to be under- stood from this that equity treats the partnership debts other- wise than as joint ; the debts are still deemed joint in equity, ' though it will allow the separate remedy.* ^ The converae, too, of this rule is equally true. In Olcott v. Little^ an action was brought against the defendant as sur- viving promisor of one Slyfield. The defence was a judgment against Slyfield in a suit commenced against him and the present defendant on the same cause of action. But it appeared that in regard to the latter the writ was returned non est in- ventus; and that Slyfield having afterwards died, the present action was brought and service obtained upon the defendant The court held that the judgment was no defence. Mr. Justice Upham, admitting the general rule in regard to judgments upon joint contracts, said that it was subject to exceptions wherever the necessity of the case required a separat-e suit to be brought. In the present instance a suflBcient excuse appeared for the sev- eral character of the action heretofore brought against Slyfield, so as not to manifest an election to proceed against him to the discharge of the present defendant ; and the exciise arose from the fact that but one of the defendants in the former suit was within the jurisdiction.^ 1 Kendall v. Hamilton, 4 App. Cas. case. Of course judgment against a 604; In re Hodgson, 31 Ch. D. 177; snrviving member of a partnership does Liverpool Bank v. Walker, 4 De G. & not conclude the representative of the J. 24. deceased partner. Buckingham v. Lud- ' Sir J. Hannen in In re Hodgson, lum, 37 N. J. £q. 187. at p. 184. * 9 N. H. 259. * Lord Justice Bo wen in the same ^ See also to the same effect Tap- SECT. III.] JUDGMENTS IN PERSONAM. 109 The rule in King v. Hoare is not applicable where the judg- ment has been rendered in favor of a joint obligor defendant unless it was upon a plea which would operate as a discharge to all.^ In the case first cited an attorney sued for counsel fees ; whereupon the defendants pleaded that the cause of action arose upon a joint retainer by the defendants and one J B, and alleged by way of estoppel a suit by the plaintiff against the said J B for the same counsel fees now in question, in which judgment was given for J B. The plaintiff entered a demurrer ; and the court sustained it.^ Again, judgment against liability upon a joint promise alleged to have been made to three is no bar to a suit upon the promise as made to two of the three. Lawrence v. Vernon • was an action of assumpsit by two plaintiffs to recover money alleged to be due for widening the lower end of a certain street. The defence was that the same plaintiffs with one other had pre- viously brought an action for widening both ends of the street, and recovered judgment ; the jury specially finding ' that the de- fendant promised so far as to make himself liable for the dam- ages incurred by widening the upper part ' of the street. The defendant contended that this judgment concluded the plaintiffs, as the declaration in the former suit embraced the widening of both ends of the street; and the jury by their verdict had nega- tived the claim as to the widening of the lower end. But the defence was held insufficient. The learned judge said that the case was to be distinguished from Hitchin v. Campbell,* the rul- pan V, Bruen, 6 Mass. 193 ; Dennett v, tion against the other joint debtors ; Chick, 2 Greenl. 191. It is also held ... for a release to one is a release to that an unsatisfied judgment against all, and "^yment by one is a discharge one joint promisor is no bar to a suit of all. Therefore, in some cases, ajudg- against the other who was at the time ment recovered by one of several joint of the suit out of the country and a debtors may be pleaded in an action non-resident. Tibbetts v. Shapleigh, 60 against the others. But this plea does N. H. 487. ' not show that the former action was 1 Phillips V. Ward, 2 Hurl. & C. successfully resisted on some ground 717 ; Neville v, Hancock, 16 Ark. common to all the joint debtors ; but 511. only that the court gave judgment for ' Bramwell, B. said : ' No doubt if the defendant, which may have been on a person jointly liable with others sue- some ground purely personal, as infancy, ceeds in an action against him alone, bankruptcy, or insolvency.* by pleading a release or payment, that * 3 Sum. 20. would afford a good defence to an ac- ^ 2 W. Bkck. 779, 827. 110 ESTOPPEL BY RECORD. [CHAP. III. ing in which was approved. The parties were not the same; the causes of action were not the same. The parties plaintiffs in the former case were Lawrence, Adams, and Lamb ; in the present suit Lawrence and Adams only. In the former suit the promise was alleged to have been made to three persons ; and unless a joint promise was proved to all three that action was not main- tainable. Nothing was better settled than that in assumpsit on a joint prooiise to three a promise to all jointly must be proved. A promise to two or one of the plaintiffs would not be sufficient ; and therefore a promise to Lawrence and Adams alone, in the former suit, would not have entitled the plaintiffs to a verdict. The verdict in that suit might have proceeded upon the very ground which would now entitle the plaintiffs to recover, namely, that the promise in regard to the lower end of the street was to Lawrence and Adams alone, and not to the three who were then suing. And that finding he considered as altogether consistent with the demand now made by the two plaintiffs.^ In another oase,^ a suit upon a joint and several promissory note, the defendant pleaded that in a former action the plaintiff had impleaded him and the other joint and several makers of the note ; and that the other defendants had pleaded the general issue, and obtained judgment. The plaintiff replied alleging matter to show that, though the other joint and several makers had been discharged, the present defendant was still liable. There was a demurrer to the replication, but it was overruled. The court said that the questions were not identical ; that in 1 The learaed judge also stated his offered in an action conducing to es- acquiesceuce in the test as Stingley v, Kirkpatrick, 8 Blacki infirmity of the defendant's argtiment 186. was that it confounded the evidence SECT, in.] JUDGMENTS IN PERSONAM. Ill the present action the question was whether one was liable, while in the former action the question was whether three were liable. If it had been shown that the note was void for want of consideration, or if any other reason going to show a discharge of all existed, the defendant would not now be liable ; but the replication showed that the former judgment had not determined the question of the liability of the present defendant Upon a similar principle, where judgment had been given against a joint attempt of two to restrain the enforcement of a judgment against them, it was held that the later judgment was no bar to a separate action by one of the two to enjoin en- forcement of the earlier judgment, on grounds personal to him^ self. It was observed by the court that in the joint action to restrain the enforcement of the judgment the parties could only avail themselves of joint causes of action ; neither of them could have set up a separate release not available to the other.^ The parties maker and indorsers of a note, or drawer, acceptor, and indorsers of a bill, of course are not joint parties, nor is there any privity between them in the sense of the law of estoppel ; and hence concurrent or successive actions may be maintained against them all by the holder, though he can have but one sat- isfaction.^ And in Neville v, Hancock this doctrine was held good in an action against the maker and indorser of a note jointly. It was decided that the maker was not discharged by the failure of the indorsee to make a case against the indorser. The case of United States v. Price,* already referred to, is worthy of further notice upon a kindred point. The main point determined in the case is foreign to the subject of estoppel ; but it became necessary to the determination of the case to consider whether a joint judgment upon a joint and several bond was a bar and satisfaction of the same. The court said that the law was too well settled to admit of a doubt or to require a citation of authorities, that if two or more are bound jointly and sever- 1 Bilflland o. McHanomy, 82 Ind. Burgess v. Merrill, 4 Taunt. 468 ; Far- 139. weU V. Hilliard, 3 N. H. 818 ; Porter «. ^Goodman v. Niblack, 102 U. S. Ingraham, 10 Mass. 88 ; Neville v. Han- .556 ; Bishop t, Hayward, 4 T. R. 470 ; cock, 15 Ark. 511. Britten v. Webb, 2 BarxL & C. 483 ; * 9 How. 83. 112 ESTOPPEL BY BECORD. [CHAP. III. • ally, the obligee might elect to sue them jointly or severally ; but having once obtained a joint judgment, the bond was merged in the judgment. It was essential to an election that the party could not have both. One judgment against all or each of the obligors was a satisfaction and extinguishment of the bond. It no longer existed as a security, being superseded, merged, and extinguished in the judgment The creditor had no longer any remedy either at law or in equity on his bond ; his remedy was on the judgment. By this the obligor was now bound, and not by the bond. The creditor having elected to obtain a joint judgment could not therefore sue the obligors severally.^ A tort committed by more than one person is in America, contrary to the English rule, regarded as joint and several in nature; giving remedies against each of the tortfeasors sepa- rately, or against all jointly.* And hence conversely judgment against one will not estop another to deny the cause of ac- tion gainst him. Thus, judgment in trespass quare clausum fregit against one co-tenant will not estop another, when subse- quently sued as a participant, from claiming the whole land.^ But satisfaction in favor of one is satisfaction in favor of all ; and the same is true pro tanto of partial satisfaction.^ It is, however, sometimes a point of difficulty to determine whether the parties are joint trespassers. In Stone v. Dickinson, just cited, the plaintiff had been arrested by the same officer on nine different writs in favor of different creditors. The writs were all served at the same time; and the plaintiff was finally released from jail by reason of defects in all the writs. The defendant offered evidence of a discharge to others of the credit- ors in bar of the action. The evidence was rejected in the court below ; but on appeal it was held admissible.^ ^ United States v, Cushman, 2 Sum. Gilbreath v. Jones, 66 Ala. 129 ; United 426, was directly overruled by this Society w. Underwood, 11 Bush, 265 ; case. Knott v. Cunningham, 2 Sneed, 210. 2 Lovejoy ». Murray, 3 Wall. 1 ; Ses- See l^e v. West, 47 Ga. 811. sions V, Johnson, 95 U. S. 847 ; Luce v. * Williams v, Sutton, 43 Cal. 65. Dexter, 135 Mass. 28 ; Stone w. Dickin- * Stone v. Dickinson, supra; United son, 5 Allen, 29 ; Brown v, Cambridj^e, Society v. Underwood, supra ; Luce v. 3 Allen, 474 ; Elliott i^. Hayden, 104 Dexter, supra. Mass. 180 ; Sheldon v, Kibbe, 3 Conn. -^ Mr. Chief Justice Bipelow, speak- 214 ; Morgan v. Chester, 4 Conn. 387 ; ing for the court, said : * It cannot be SECT. III.] JUDGMENTS IN PERSONAM. 118 Secondly, of parties. It is a general principle, apart from the doctrine of merger, fundamental to the doctrine of res judicata, that personal judgments conclude only the parties to them and their privies. The bar must be mutual to the parties in the denied that the parties who were plain- the immediate trespassers by whom the tiffs in the original actions, in suing tortious act was done were the sgents out their writs against the present of several different plaintiffs who, with- plaintiff and causing him to be ar- out preconcert, had sued out separate rested and imprisoned, acted separately writs against him. The measure of his and independently of each other, and indemnity cannot be made to depend on without any apparent concert among the number of principals who employed themselves. As a matter of first im- tlie officers to arrest and imprison him. pression it might seem that the legal We know of no rule of law by which a inference from this fact is that the single act of trespass committed by an plaintiff might hold each of them liable agent can be multiplied by the number for his tortious act, but that they could of principals who procured it to be done not be regarded as co- trespassers in the so as to entitle the party injured to a absence of proof of any intention to act compensation graduated, not according together or of knowledge that they were to the damages sustained, but by the engaged in a common entei'prise or un- number of persons through whose in- dertaking. But a careful consideration strumentality the injury was inflicted. of the nature of the action, and of the The error of the plaintiff consists in injury done to the plaintiff for which he supposing that the several parties who seeks redress in damages, will disclose sued out writs against him and causeil the fallacy of this view of the case. The him to be arrested and imprisoned can- plain tiff alleges in his declaration that not be regarded as co-trespsssers, because he has been unlawfully arrested and im- it does not appear that they acted in prisoned. This is the wrong which con- concert or knowingly employed s com- stitutes the gist of the action, and for mon agent. Such preconcert or knowl- which he is entitled to an indemnity, edge is not essential to the commission But it is only one wrong, for which in of a joint trespass. It is the fact that law he can receive but one compensa- they all united in the wrongful act, or tion. He has not in fact suffered nine set on foot or put in motion. th6 agency separate arrests, or undergone nine sepa- by which it was committed, tliat ren- rate terms of imprisonment. . . . The ders them jointly liable. ... He may, alleged trespasses on the person of the it is true, have a good cause of action plaintiffwere therefore simultaneous and against several persons for the same contemporaneous acts, committed on wrongful act and a right to recover him by the same person acting at the damages against each and all therefor same time for each and all of the plain- with a privilege of electing to take his tifls in the nine writs upon which he satisfaction de melioribus damnis. . . . wasarrested and imprisoned. It is, then. But no one would contend that he could the common case of a wrongful and un- recover satisfaction from each of the lawful act committed by a common persons liable to an action. When the agent acting for several and distinct damages against him had been once paid principals. It does not in any way by any one of those who procured the change or affect the injuiy done to the commission of the trespass, he could not plaintiff, or enhance in any degree the claim to recover them again from eaeh damages which he has suffered, that of the others.' 8 114 ESTOPPEL BY RECORD. [CHAP. III. later aciiou.^ * Parties/ says Greenleaf, 'in the larger legal sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision if an appeal lies;'^ and it may be added, those who assujne such a right.^ The rule includes, among defendants, not only persons duly served with process, but also all such as have by appearance waived want of service.* It ^ Petrie V. Nuttall, 11 Ex. 569 ; Kingston's Case, Everest k Strode, Springport v. Tentonia Bank, 75 N. Y. Estoppel, 421. 397 : Bissell v. Kellogg, 65 N. Y. 432 ; * Stoddard v. Thompson, 31 Iowa, Fisher v. Banta, 66 N. Y. 468 ; Ray- 80 ; Landis v. Hamilton, 77 Mo. 554 ; mond V, Richmond, 78 N. Y. 351 ; Winchester v, Heiskell, 119 U. S. Qoodman v. Niblack, 102 U. S. 556, 450. 562 ; Railroad Co. v. National Bank, ib. ^ See e. g. King v. Penn, 43 Ohio St. 14 ; Davis Machine Co. v. Barnard, 48 57; Burpee v. Sparhawk, 108 Mass. Ill, Mich. 379 ; Buttrick v. Holden, 8 Cush. 114. One does not become a party to a 233 ; McDonald v. Gregory, 41 Iowa, canse, so as to be bound by the jndg- 513 ; Stoddard v. Burton, 40 Iowa, 582 ; ment, by merely obtaining leave of Hine v, K. & D. R. Co., 42 Iowa, 636 ; court to be made a party. Denny v, Stoddard v. Thompson, 31 Iowa, 80 ; Bennett, 128 U. S. 429. But any one Goodnow V, Litchfield, 63 Iowa, 275 ; interested in a cause may in equity be Betts V, New Hartford, 25 Conn. 180 ; made a party thereto against his will, Hutchinson o. Bank of Wheeling, 41 so as to be bound by the decree rendered. Penn. St. 42 ; Peebles v. Pate, 90 N. There has been some doubt whether this Car. 848 ; Meltzer v. Doll, 91 N. Y. rule applies to the case of a bill to fore- 365, 373 ; Quigley v. Mexico Bank, 80 close a mortgage, so that the plaintiff Mo. 289, 296 ; Young v. Stoutz, 74 Ala. can make a prior incumbrancer, or one 574 ; Cain v. Sheets, 77 Ala. 492 ; Doo- holding a paramount title not prior, such ley V. Potter, 1 40 Mass. 49 ; Salem v. as a tax title, a party to be bound by Eastern Railroad, 98 Mass. 431, 446 ; the decree, but the better opinion is McMahon - 9. Merrick, 33 Minn. 262 ; that he can. Hefner r. New York Life Dodd V. Una, 40 N. J. Eq. 672, 722. Ins. Co., 128 U. S. 463, where the con- It is difficalt to understand Board of flicting decisions and dicta are reviewed. School Directors v. Hernandez, 31 La. * To a bill in equity,* said Mr. Justice An. 158, or Louisiana Levee Co. v. State, Gray in that case, ' to foreclose a second ib. 250, or Folger o. Palmer, 85 La. An. mortgage, although the first mortgagee is 473. The same must be said of Hill v. not a usual or necessary party when the Bain, 15 R. I. 75 ; the cases cited by decree sought and rendered is subject the court in no way support the decision, to his mortgage, yet, at least when he They are such cases as that of principal holds the legal title, and his debt is due and agent. See post, pp. 120 et seq. and payable, he may, and when the It would be better to look for light to property is ordered to be sold free of all cases like Pirn v, Curell, 6 Mees. & W. incumbrances, must be, made a party ; 234, and Neill v. Devonshire, 8 App. and if he is, and the bill contains suffi- ces. 135, 147; ante, p. 86, note 4. cient . allegations, he is barred by the Such estoppels are, indeed, odious. decree, the bill in snch case being in > 1 Greenleaf, Ev. f 535 ; Litchfield effect both a bill to foreclose the second V. Goodnow, 123 U. S. 549 ; Duchess of mortgage and a bill to redeem from the SECT, m.] JUDGMENTS IN PERSONAM. 115 should be noticed too that purchasers pendente lite of non- negotiable ^ property in litigation are, so far as the property is concerned, deemed to stand in the situation of parties.^ But parties, it is said, must be openly such ; there can be no secret parties in benefit, unknown to the adverse side.^ The recent case of Wright v. Phillips * may be referred to as a forcible illustration of the rule that personal judgments cannot affect the rights of strangei*^. It was there held that, notwith- standing a judgment rendered in favor of one of several distribu- tees of an estate of a decedent against the administrator, the other distributees, not parties to the action, might show that the distributee in the first suit had by the judgment obtained more than his proper share of the estate. In Petrie v. Nuttall ^ the plaintifif sued in trespass for break- ing and entering the plaintifiT's land. The defence was that the part referred to was a public highway ; and an indictment, ver- dict, and judgment against the plaintifif were pleaded by way of estoppel for obstructing the very same piece of land, as being the queen's highway. To this defence the plaintifiT demurred ; and his demurrer was sustained on the ground that the parties were not the same in the two actions.® The point decided in Petrie v. Nuttall is well settled. Judg- ments in criminal causes are rendered between the state and fint mortgage.' For this yarious cases therefore it was not between the two are cited. parties to this action. * The distinc- 1 Orleans v. Piatt, 99 XT. S. 676. tion,' he said, ' is shown by the author- « Stout V, Lye, 108 U. S. 66 ; Eyster ity cited in Viner's Abr., Estoppel (F), V. Gaff, 91 U. S. 521; Daniels v, 85, where it is said! : "If a man indicted Henderson, 49 Cal. 248. of extortion or trespass puts himself * Schroederv. Lahrman, 26 Minn. 87, into the grace of the king, and makes where it was held that secretly employ- fine, and, after, the party sues against ing counsel and appearing as a witness him thereof by bill or writ, and he were not enough to enable one to make pleads not guilty, he shall have the use of the judgment as an estoppel. plea, and the making of fine to the * 56 Ala. 69. king shall not estop him.'* That is pre- * 11 Ex. 569. cisely this case, and we ought to follow * Alderson, B. said that it was es- the same rule. No doubt the judgment flpntial to an estoppel that it should be in the indictment may be given in evi- mutual, so that the same parties or dence upon the trial of the issue as to privies might be bound and take advan- whether the locus in quo is a public tage of it. The crown and subject highway ; but it cannot be pleaded as were parties to the indictment ; and an estoppel.* 116 ESTOPPEL BY RECORD. [CHAP. III. the defendant ; they are not binding in civil cases, though tlie defendant or the state be there a party, either for or against such party, for want of mutuality.* Heuce an acquittal upon a charge of crime will not estop one who accuses the party ac- quitted from proving the charge true in an action for slander.^ In a case in Massachusetts ^ the defendant contracted to sell land to the plaintiff,, but instead of doing this sold the land to a third person. The action was for the breach of contract; and the defendant produced in bar the record of a suit in chancery by the plaintiff against him and the party to whom he conveyed the land for a specific performance of the contract and for relief ; alleging that the whole subject-matter of the contract and the breach was investigated, and the suit dismissed. But the court said that this was no bar, the suit in equity being between other parties. There is conflict of authority concerning the effect of judg- ment against parties under legal disability who failed to plead the defence of incapacity. In Griffith v. Clarke * judgment by default had been obtained against a married woman in a suit upon a promissory note; and an injunction having been ob- tained to restrain the former plaintiff from obtaining satisfaction of the judgment, the court refused to dismiss it. The feme, it was said, was not competent to employ counsel ; and the contract sued upon being void, she was not to be prejudiced by the entry of judgment by default against her for non-appearance. In Morse v. Toppan,* which was an action of contract on a judgment against a married woman obtained on a contract made by her, the court held that the coverture of the defendant at the time of the previous action was a bar to the present suit. The case, it was said, was the same as if she had entered into an obligation by bond at the same time, to which she might have pleaded non est factum. ' A judgment,' said the court, * is in the nature of a contract ; it is a specialty, and creates a debt ; 1 Castrique v. Imrie, L. B. 4 H, L. « Corbley v. Wilson, 71 Til. 209. 414, 484 ; Corbley v. Wilson, 71 111. ■ Buttrick v. Holden, 8 Cush. 233. 209. See McBeev. Fulton, 47 Md. 403, * 18 Md. 457. and comp. Djichess of Kingston's Case ; * 3 Gray, 411. ante, p. 91. SECT. III.] JUDGMENTS IN PEBSONAM. 117 and to have that effect it must be taken against one capable of contracting a debt/^ On the other hand, it has been decided in Indiana upon a long line of authorities in that state that judgment obtained against a married woman by default upon a contract void for coverture is binding ; and the two cases above refeiTed to were sharply criticised.* So it has been held in Pennsylvania that where a married woman had executed a mortgage in her maiden name, upon which a scire facias was executed against her in the same name, judgment recovered, and the land sold, the pur- chaser gets a good title, and the feme cantiot allege her cover- ture in ejectment for the premises against him.^ However, it has also been decided in Pennsylvania, upon the authority of several cases in that state, that judgment on scire facias issued on a judgment against a married woman on a bond by her and warrant to confess judgment ia void, and that a sheriff's sale thereunder passes no title.^ But the enabling acts concerning married women have made great changes in the law in reference to questions of this kind. In regard to infants the statutes generally give a day upon their attaining majority in which they may have judgments or decrees previously rendered against them reversed or set aside ; and if they do not avail themselves of this immunity, the result is that the judgments or decrees become binding upon them.^ In cases not arising under this class of statutes there is a con- ^ Faithorne v. Blaquire, 6 Maule & ' Hartman v. Ogborn, 54 Penn. St S. 78. For the later rule in Massachu- 120. See also Van Metre u. Wolf, 27 aetts see Freison v. Bates CoUege, 128 Iowa, 841; Green v. Branton, 1 Dev. Mass. 464. A married woman may now Eq. 500 ; Gambetta v. Brock,' 41 Cal. be bound by covenants of warranty in 78 ; Patterson o. Fraser, 5 La. An. 586 ; Massachusetts. Knight v. Thayer, 125 Elson v, 0*Dowd, 40 Ind. 800 ; Guthrie Haas. 25. v. Howard, 32 Iowa, 54. 2 Bnrk v. Hill, 55 Ind. 419. This is * Graham v. Ix>ng, 65 Penn. St. 383; of course a qualification to the general Dorrance v, Scott, 3 Whart 309 ; Cald- mle that an illegal or void contract well r. Walters, 18 Penn. St. 79. See cannot be made the basis of an estop- also Baines v. Burbridge, 15 La. An. pel. Mattox v. Hightshue, 39 Ind. 95 ; 628. Pettis r. Johnson, 56 Ind. 139. • Waring v. Reynolds, 8 B. Mon. In North and South Carolina also 59 ; Poi'ter v. Sobinson, 8 A. £. Marsh, jndgmont is binding. Grantham v. 258. Kennedy, 91 N. Car. 148 ; Crenshaw v. Julian, 26 S. Car. 283. 118 ESTOPPEL BY RECORD. [CHAP. III. flict of authority like that above mentioned. An infant duly represented by guardian in an action will indeed be estopped by judgment against the latter.^ And in Greorgia, Kentucky, Indiana, North Carolina, and perhaps elsewhere, judgments against infants sued without guardian are held to be voidable only, and hence not impeachable in collateral actions.^ In Illinois such judgments are held void.^ And this appears to be the better doctrine, at least where the legislature has provided a special mode of action against infemts. In such cases the pro- ceeding is not according to the course of the common law, and hence by analogy to other cases the presumption concerning the court's jurisdiction cannot be conclusive if there be no express averment in the record.* Thus, if the record should simply state that the defendant was served with process, he could in the collateral suit allege, if not too late, that he was then an infant without guardian, and that no guardian ad litem was appointed * Whether he could do so in case of an appearance and neglect to plead his disability is more doubtful ; although if the view above expressed be accurate, that the judgment is a contract, it could not be material whether there had been an appeamnce or not ; in either case the judgment could be im- peached. But it is doubtful if a judgment for the plaintiff can be considered for all purposes a contract. Perhaps the more consistent rule would be that judgment against an infant with- out guardian or appearance is not binding in collateral actions, but if an appearance were entered, that the judgment cannot be disturbed.® This subject, however, is largely matter of statutory regulation, and will not be further pursued. ^ Sharp V. Findley, 71 Ga. 654, 667 ; » See Whitney v. Porter, supra. But Bailey v. Bailey, 116 lU. 661. see Austin v. Charlestown Female Sem., 2 Ibid.; Evansr. Collier, 79 Ga. 319, 8 Met 196; Butter v. Puckhover, 9 822 ; Blake v. Douglass, 27 lud. 416 ; Bosw. 638, to the effect that even then Marshall v. Fisher, 1 Jones, 111. See the judgment would be only voidable also Grantham ». Kennedy, 91 N. Car. and not void.. 148 ; Austin v. Charlestown Female ^ Judgment against an adult in an Sem., 8 Met. 196 ; Ralston v. Lahee, 8 action by him against an infant is of Iowa, 11. The statements of the court course conclusive upon him. Kendall in the latter case are only dicta. The v, Titus, 9 Heisk. 727. The defence proceeding was not collateral, but direct, of disabUity is personal to the one sub- ■ Whitney v. Porter, 23 lU. 445. ject to it. Comp. First National Bank « See post, § 4. v. Gillilan, 72 Mo. 77. SECT. III.] JUDGMENTS IN PERSONAM. 119 Apart from statutory enactmeDt, judgment against a lunatic, in a suit duly begun, is binding in collateral actions ; ^ and the same is true of judgment against a person deceased.^ But the party or estate to be affected must be properly represented, otherwise judgment would be entirely void. There is a class of cases, resting upon a different ground from that of merger, in which also it is no valid objection to the plea of res judicata that the parties to the former action were more or less ^ numerous than in the present suit. Chief among these are cases in which real parties fight out a cause behind a nominal party.* In Tate v. Hunter ^ it appeared that the com- plainant's testator had brought an action of assumpsit against a sheriff for a sum of money collected by him under process of a court of law and retained to be applied to an execution which had been assigned to the defendant. After a revivor by the complainants as executors, and a closely contested litigation, judgment had gone for the defendant The complainants then filed the present bill, praying that the execution and judgment in question (the one assigned to the defendant) might be post- poned to the subsequent judgment in favor of their testator against the party whose funds the sheriff had collected and re- tained. But the bill was dismissed. Mr. Chancellor Dargau said that the only question to be considered was whether the present suit was between the same parties as were before the court in the prior suit against the sheriff; and he was of opinion 1 Wood V. Bayard, 68 Penn. St. 320; 127, 136. And see Verplanck v. Vau Foster v. Jones, 28 Ga. 168 ; Lamprey Buren, 76 N. Y. 247, 256 ; Thames r. V. Nudd, 29 N. H. 299 ; Clarke ». Dun- Jones, 97 N. Car. 121, numerous parties ham, 4 Denio, 262. suing or defending through one. * Trae, ' Carr v, Townsend, 63 Penn. St. the parties plaintiff in the two actions 202 ; Stortzell v, Fullerton, 44 111. 108 ; differ in name of person, but their rep- Beid p. Holmes, 127 Mass. 826 ; Spal> resentative character is the same in that din;? r. Wathen, 7 Bush, 659 ; Coleman each stands for the estate and right of V. McAnulty, 15 Mo. 173. T W C. True, they wei-e appointed * Follansl)ee v. Walker, 74 Penn. St. at the instance of different creditora ; 806 ; Davidson v. State, 68 Ala. 432. but one succeeded the other in title, * Tate V. Hunter, 3 Strob. Eq. 136 ; and took into possession the same estate Lyon V. Stanford, 42 N. J. Eq. 411 ; and right, that of T W C* folger, J. Castle V. Noyea, 14 N. Y. 329. Comp. in Verplanck v. Van Buren. cases of representative parties, pp. 120- * 3 Strob. £q. 136. 120 ESTOPPEXi BY RECORD. [CHAP. III. that they were the same. The sherifiF in the former action waa only a nominal party ; the defendant in the present case being the real party in interest. The sheriff was simply a stakeholder without a particle of interest ; it mattered not to him which of the claimants recovered the money in his hands. The battle was fought over his shoulders by the real parties. The defend- ant was not only the real party adverse in interest to the com- plainants, but he had notice of the suit and defended it by counsel A more difficult question arises frotn the relation of principal and agent or of master and servant. What is the effect of judg- ment obtained against an agent or a servant, whose act is the act of the principal or master, when the superior has not been made a party to the suit ? Clearly, if the principal or master has not participated in a tort committed by the agent or ser- vant, the two cannot strictly.be joint or several tortfeasors. If there has been participation, joint or several judgments can in this country, as we have seen, be obtained ; and perhaps, without participation, a /(nTi^ judgment against the two together might be obtained, based upon the act of the servant or agent alone, where that act binds the master or principal.^ But can several judgments be had in such a case ? Will the mere fact alone that A is liable for the act of B, be sufficient ground for ah ac- tion and judgment against each separately ? Now, if an action cannot be maintained against a master after judgment against his servant for the authorized act of the latter, it must be be- cause the master is bound by the judgment just as if* he had been a defendant with his servant, or because of merger of the cause of action, or because of election. But the first of the reasons cannot hold good ; for it would always be open to a plaintiff, by collusion with a servant at variance with his mas- ter, to subject the latter's property to execution. The second reason has a better foundation. There is no several liability be- cause tliere has been no several tort by each ; the master has in no way participated in the wrong committed by his servant. The one action must therefore in principle include the whole cause of action ; and the one judgment must merge the one cause of ac* 1 Bat see Campbell v. Phelps, 1 Pick. 62 ; infra, p. 122. SECT. III.] JUDGMENTS IN PERSONAM. 121 tion, annulling it by transforming it into a judgment obligation.^ The case may also well stand upon the footing of election ; probably that is the better footing * The question, as it has been presented before the courts, has generally arisen in relation to officer and deputy ; though it has sometimes taken the wider form in which we have thus far considered it, the result generally being in accord with the view above taken.^ In Priestly v, Fernie the plainti£f sued the owner of a ship on a bill of lading, and the defendant pleaded a judgment on the same bill of lading against the master of the vessel, obtained by the same plaintiff. The question was finally raised by demurrer whether the judgment pleaded was a bar to the present action. It was held that it was, on the ground of election.* ^ No action can be maintained against tion against one might be discontinued the sheriff upon a judgment against and fresh proceedings be well taken the deputy ; the sheriff does not owe the against the other. Further, there in judgment, not having been a party to abundance of authority to show that the cause. Pervear v. Kimball, 8 Allen, where the situation of the principal is 199. altered by dealings with the agent as * See Priestly v. Fernie, 8 Hurl. & principal, the former is no longer sub- C. 977 ; Kingsley r. Davis, 104 Mass. ject to an action. But this is the case 178 ; Ring v. Chase, 15 N. H. 9. here. . . . If this then were the ordi- * Priestly 17. Fernie, 8 Hurl. & C. nary case we have mentioned, there 977 ; Warfield v. Davis, 14 B. Mon. could be no doubt on the subject. But 40 ; Lyon v. Stanford, 42 N. J. Eq. it is said that the liability of the master 411, 414 ; Emery v. Fowler, 89 Maine, of a vessel acting for his owners, and 826. But see Maple v. Railroad Co., their liability where he acts for them, 40 Ohio St 818. This doctrine was is different from the liabilities in ordi- fltretched too far in Hill v. Bain, 15 nary cases of principal and agent, and B. I. 75. See also Atkinson v. White, that first one and theu the oUier may 60 Maine, 396. be sued. The plaintiff's argument then, * Mr. Baron Bramwell said : ' We namely, that the present case is anoma- are of opinion our judgment should be lous, is exceptional. When that is for the defendant If this were an ordi- contended for, strong reason ought to nary case of principal and agent, where be given for it. What is given here ? the agent, having made a contract in It is certain 'that the master's liability his own name, has been sued on it to is founded on the same considerations judgment, there can be no doubt that as that of an ordinary agent, namely, no second action would be maintainable he makes the contract in his own name, against the principal The very expres- Rich r. Coe, 2 Cowp. 636; Story, sion that whete a contract is so made. Agency, § 296. But it is said that for the contractee has an election to sue purposes of commerce it is convenient agent or principal, supposes he can only both master and owner should be suable, sue one of them, that is to say, sue to So it is, but why to the extent con- judgment. For it may be that an ao- tended for more than in any other case 122 ESTOPPEL BY RECORD. [CHAP. III. In the narrower form the question arose in Campbell v. Phelps.^ The action in that case was trespass de bonis aspor- tatis against the sheriff of Hampshire ; to which the defence was that the taking complained of was by the defendant's deputy-sherifiF, and that the plaintiff had obtained judgment for it against the deputy. The plaintiff replied that the judgment had not been satisfied; to which there was a demurrer, which the Supreme Court sustained. It was held by a majority of the court that the sheriff and his deputy were not to be considered as joint (or several) trespassers on their mere relation to each other so as to subject them to a joint action,* or to give the party injured a right to bring his action against one after obtain- ing judgment against the other* The opposite view hns been taken by the Supreme Court of Connecticut* But if upon judgment in favor of the plaintiff against the servant another action cannot be permitted for any reason, what shall be said of the effect of judgment for the defendant in the first suit ? Merger being out of the question in such a case, must the plaintiff be permitted, if he desires, to sue the master ? It should seem not, for the question of defendants is immaterial to him ; the only question is whether the servant committed the of principal and agent ? It might be and that though the case citpd of Rich hard to make a person who deals with v. Coe, 2 Cowp. 636, which he pro- the master run after the owner to sue nounces of questionable authority, sup- him ; but why, if he sues the master, ports the proposition stated by Mr. should he afterwards sue the owner Livermore, it does not support that merely because it is very right he should maintained in Story on Agency, be able to sue the captain or owner ? In ^1 Pick. 62. reality no reason can be given for the ^ This appears to be a purely tech- distinction attempted between this and nical position. The deputy must be other cases of princi|^ial and agent. It liable 1>ecause the tort is hU ; and the is not said none could be given why in deputy's act binds the sheriff in the all cases of principal and agent both situation nnder consideration. There should be suable, but that there is no is no reason, except the technical one, particular reason applicable to the mas- why both may not be sued together, ters and captains of ships.' The learned • See further Todd t?. Old Colony R. baron then says that the only authority Co., 8 Allen, 18 ; Pervear v. Kimball, for the position of the plaintiff is a pas- 8 Allen, 199 ; Bennett v. Hood, 1 sage in one of the works of Mr. Justice Allen, 47; Elliott v. Hayden, 104 Mass. Story (Story, Agency, § 295), given on 180. the HUthority of Mr. Livermore (2 Liy- * Morgan v. Chester, 4 Conn. 887. ermore, Agency, 267). He shows that Comp. Warner v, Comstock, 65 Mich* the former misunderstands the latter ; 616. SECT. III.j JUDGMENTS IN PERSONAM. 123 illegal act sued for, and this may as well be decided once for all in an action against either the servant or the master. Nobody's rights can be affected by allowing the master to produce the record of the judgment as conclusive evidence against the plain- tiff's demand. It is not the case of a stranger availing himself of the benefit of a record inter alios ; and so it has been decided in New Hampshire,^ and in effect in Maine.^ This view, however, is based upon the assumption that the judgment in favor of the defendant proceeded upon a ground equally applicable in an action against the master ; such, for ex- ample, as the lawfulness or unlawfulness of the act in question. Thus, in an action of assumpsit ^ for rent against the assignees in bankruptcy of one Evans, it appeared that in a former action of replevin by the assignees against the present plaintiff's bailiff for cattle distrained for rent of the same premises, the question arose whether there was a tenancy between the assignees and the plaintiff. The issue was found against the assignees, and the plaintiff now relied upon the judgment in that case to prove the tenancy ; the former judgment having determined that they were tenants at a time subsequent to that now alleged. The defendants contended that the record was not evidence against them, as the parties in the replevin suit were different from those in the present ; the defendant in that action being the bailiff. But Lord Ellenborough held the judgment binding upon them. Similar principles ought to prevail in questions of principal and surety. While the question of a right of action against either after judgment agaivst the other will depend upon the further question whether the engagement sued upon is joint or several,^ it seems clear that judgment in favor of the principal ^ King V. Chase, 15 N. H. 9, 19. him in a subsequent recognizance, or a The groand taken was the equally true bond to dissolve an attachment condi- one that the |ilaintiff, having an elec- tioned to pay the judgment. Way v. Hon, had elected to sue the deputy. Lewis, 115 Mass. 26 ; Cutter v. Evans, ^ Emery v. Fowler, 89 Maine, 326. ih. 27. So principal or sui-ety may have But see Maple v. Railroad Co., 40 Ohio the benefit of a judgment against both St 31 3. in a subsequent contest with the opposite • Hancock p. Welch, 1 Stark. 847. party involving the same question. See * Judgment against a party without £hle v, Bingham, 7 Barb. 494 ; infra, frpiid or collusion will be binding not p. 127. only upon him but upon a surety with 124 ESTOPPEL BY BECOBD. [CHAP. m. or the surety, in a suit against either, upon a ground applicable to both, should (so far) be accepted as having conclusively de- cided against the plaintiffs right of action,^ The matter of newly discovered evidence, if such should be urged, should be disposed^ of (in this and the case above considered) as upon.a motion for a new trial; but no new action should be permitted upon the same evidence by simply changing the name of the defendant In a case' of principal and agent, where the agent, having made a contract in his own name, has been sued thereon and judgment rendered against him, it is in like manner laid down that no action can be maintained against the principal.^ The rule is no doubt different in the case of an undisclosed agency ; but if a case be carried to judgment against the agent after knowledge of all the facts has reached the plaintiff, he will not be permitted to sue the principal.^ And on the other hand, if judgment has gone in favor of the defendant upon a ground affecting the very validity of the contract, this ought also to be conclusive in a subsequent action against the principal. It should be stated, however, that the effect here noticed of an action and judgment against the agent is by the authorities based upon the ground of election ;^ and in a recent case it has been said that this election does not become binding until satisfaction, which is of course as much as to say that there is no binding election at all in such cases.^ But this, it is apprehended, is not the better doctrine. When the cause has once reached judg- ment, the demand ought to be treated as determined,® unless matters exist which would justify a new trial, in which case there may be no sound objection to permitting the plaintiff to bring his action against the party not sued in the first proceed- ing. It may be added in this connection that judgment against I State V. Coste, 36 Mo. 437. ^ Beymer v, Bonsall, 79 Penn. St « Piiestly V. Femie, 3 Hurl. & C. 298. 977. * As for the subseqaent discovery of ' Eingsley v. Davis, 104 Mass. 178 ; an undisclosed prlncijial a new action Raymond v. Crown Mills, 2 Met 819 ; could consistently with this position be Jones V. Mtnti Ins. Co., 14 Conn, allowed, since the plaintiff, not know- 501. infc of the existence of a principal,, had * Priestly v. Femie, p. 121, note 4. not elected to sue him. SECT. in. J JUDGMENTS IN PERSONAM. 125 the agent upon a cause of action for which the principal is liable is probably conclusive upon the principal in the absence of fraud or collusion on the part of the agent.^ We have thus far spoken of the effect of a judgment for or against the servant or agent in a subsequent action against the master. Sometimes the converse situation is brought before the courts, and a question presented of the effect of a judgnient for or against the master in a subsequent action against the servant. But the same principles should prevail, and indeed have been held to prevail. In Calkins v, AUerton ^ the plaintiff brought trover for cattle. The defendant justified the taking as having been done under the orders of a third person and under his title. Thereupon the plaintiff, to prove his own title and right of pos- session, produced the record of a judgment in his favor in an action of trover brought by him against the person under whom the defendant now justified. The defendant objected on the ground that the parties to that suit were different from those to the present ; but the record was received and held conclusive. The court thought, indeed, that if the present defendant had sus- tained the delation of co-trespasser with the defendant in the former action, the record would be inadmissible; but it was considered that the defendant could not be so treated. It may be doubted if in this the court were not in error. It was by defendant's voluntary act that the conversion was effected, and the mere fact that the master would be bound to indemnify him for the consequences would not prevent the defendant being a co-trespasser. However, this woidd not militate against the ruling of the court, because the defendant claimed no title to the cattle in himself. As the court well proceeded to say, the defendant justified under the master, alleging title in him ; on this ground the judgment was conclusive concerning the title to the cattle. The court called the situation one of privity, but (it seems) it was not a case of privity in the ordinary sense of the law of estoppel ; there was no succession of interests. The better ground for the decision would be that the judgment had decided a question in which the defendant, by his own admission, 1 See Lyman v. Fans, 53 Iowa, 498; Clark v. Wolf, 29 Iowa, 197. « 4 Barb. 171. 126 ESTOPPEL BY RECORD. [CHAP. III. had no interest. If, on the other band, as ve have already in- timated, the defendant had claimed title to the property, the record, it is clear, would have been inadmissible. Thus^ in another action of trover, in answer to which the defendant relied upon the record of a judgment in his favor in a replevin suit by him against the plaintiffs servant for the same property, .the record was held inadmissible.^ It should be added that a sheriff is not the agent or servant of the owner of property attached and sold by him. The result is that judgment against the sheriff for a wrongful attachment of the plaintiff^s goods is without avail against a purchaser at the officer's sale ; the purchaser deriving his title from the owner, not from the sheriff.* If in cases of principal and agent or of bailment the principal or bailor bring an action and proceed to judgment on the merits, the agent or bailee cannot sue for the same demand even though he could liave done so originally in his own name.* In the case first cited it appeared that the owners of a cargo of salt had brought suit against certain carriers (who had agreed to forward it) for negligence in failing to deliver it at the place agreed, with a count in trover for a conversion of the salt. Judgment had gone for the defendant Subsequently in the present case the bailee of the owners brought an action based on the same grounds ; but the court held the former judgment a bar. The court said that as a general rule a bailee (by reason of having a special property) and the general owner might either of them sustain an action for the conversion of or an injury to property in which they were interested. The right to sue was indispen- sable to enable each to protect his particular interest ; but as the law would not suffer a defendant to be twice harassed for the same cause, only one suit could be brought, and it would be a bar to every other. * On the other hand, judgment obtained by or against the agent or bailee cannot be used for or against the principal or bailor, except in case of an action brought at his instance,^ or by due 1 Alexander v. Taylor, 4 Denio, 802. • Green v, Clarke, 12 "NT. Y. 848 ; 2 McKay v. Kilbum, 42 Mich. 614. Kent v, Hudson River R. Co., 22 Barb. And comp. Hnnt v. Hayen, 52 N. H. 278. 162, which turned upon a like principle. ^ One who instigates and promotes a SECT, ni.] JUDGMENTS IN PERSONAM. 127 authority,^ or when he has received and retained the fruits of the judgment. Thus, in the case of Pico v. Webster ^ an action had been brought by an agent, in his own name, for a trespass in taking gold coin from the possession of the agent, and con- verting it ; in which action the jury had found that the coin belonged to the principal, and had given nominal damages. The principal now sued the same defendant for the same tres- pass; and the former judgment was relied upon as a bar. But the court overruled the objection. * There was,' it said, 'no evidence, certainly no conclusive proof, that the suit of Bi-odie [the agent] was brought at the instance or for the use of Pico/ Other cases than these (not of privity in the sense of the law of estoppel) have also arisen in which a former judgment has been held a bar though the parties were not precisely the same in that cause as in the one to which it is invoked as a bar ; ' as where judgment is rendered against B and C in a suit by A, and the same question is raised again in a suit by B against A. Ehle V. Bingham was such a case. The action was brought to recover damages for breach of warranty in the sale of sheep. The plain- tiff had given his note for them, in which another had joined with him as surety ; and the sheep having proved to be diseased be sued on the warranty of soundness. The defendant gave in evidence the record of an action by himself in which he obtained judgment upon the note against the plaintiff and his surety ; the latter not being a party to the present action. It appeared from the record that the plaintiff had then set up in defence the subject-matter of the present suit. The plaintiff objected to this judgment as res inter alios acta; but the objection was overruled.* unit for one's own benefit, by employ- • Ehle v, Bingham, 7 Barb. 494 ; ing counsel and binding oneself to the Whitford v. Crooks, 54 Mich. 261 ; Fol- payment of costs and damages, is bound lansbee v. Walker, 74 Penn. St. 306 ; by the judgment obtained. Landis v. Davidson v. State, 68 Ala. 432 ; Pai-nell Hamilton, 77 Mo. 554, citing Stoddard r. Hahn, 61 Cal. 131 ; Kemetty v. V, Thompson, 81 Iowa, 80 ; Lovejoy v. Naylot, 100 N. Y. 562 (that one of a Murray, 8 Wall. 1, 18. Oomp. ante, partnership may represent the firm, in I>. 115, notes. litigation). * Nemetty v. Naylor, 100 N. Y. 562. * Upon this point Mr. Justice E«l- ' 12 Cal. 140. wards said : * It vnU be remembered 128 ESTOPPEL BY RECORD. [OHAP. III. The case of Thompson v. Roberts ^ is another example of a different kind. Mr. Justice Grier, speaking for the court upon the question of res judicata, said that the objection that the parties were not the same in both suits could not be sustained Both parties to this litigation were parties to that suit; the subject-matter was the same ; the defence now set up was the same which the pleadings and the evidence show to have been adjudicated in the Court of Chancery. It was true that by i*eason of interest S was joined as complainant, and a certain company were made respondents, according to the practice in the Courts of Chancery, where all parties having an interest in the question to be tried are made parties that the decree may be final upon all matters in litigation. No good reason could be given why the parties in this case, who had litigated the same question, should not be concluded by the decree because others having an interest in the question or subject-matter were ad- mitted by the practice of a Court of Chancery to assist on both sides.^ The question of the conclusiveness of a former judgment in ejectment in a subsequent action of the same kind came before the Supreme Court of the United States in the case of Miles v Caldwell.^ The complainant sought to evade the force of the defence on the ground that the verdict and judgment in eject- ment had not that conclusive effect which they had in other proceedings. But the court, conceding that the point would be well taken with regard to the common-law action of ejectment that the fonner suit was upon a prom- ants,' auch parties being joined as sue- issory note which grew out of a transac- cessors to the present plaintiffs and tion to which the plaintiff and defendant defendants. ' The matters at issue in this suit alone were parties, and that common to both suits have been ad- the plaintiff in this suit put in a sepa- judicated.* And Thompson v. Roberts rate plea and notice of a matter personal was then quoted. See also Pollard v. to himself ; and the mere fact that an- Railroad Co., 101 U. S. 223 (that judg- other person was sued with him ought ment in assumpsit by husband and wife not to deprive the defendant in this suit in favor of the plaintiffs for injury caused of the benefit of the former judgment.' the wife by a carrier of passengers bars ^ 24 How. 233. an action by the. husband alone for 2 Western M. Co. V. Virginia Coal damages from the same oause of ac- Co., 10 W. Va. 260, 293. * It mattered tion) ; Lawrence «. Hunt, 10 Wend, not,' said the court in this case, *that 80. other paities were plaintiffs and defend- ' 2 Wall. 85. SECT. IIT.] JUDGMENTS IN PERSONAM. 129 with its fictitious parties,* held otherwise.^ This is clearly the sensible view ; but no uniform rule prevails upon the subject, ejectment having been variously treated according to the natui-e of statutory provisions or the persuasive force of the old com- mon-law rule * ^ See Doe v. Harlow, 12 Ad. k £. (which, unrestrained by the technicality, 40 ; Doe r. Thomas, 1 Tyrwh. 410 ; Rai- could look past the nominal parties to ley V. Fairplay, 6 Binn. 450 ; Rogers v. the real ones) to interfere, after a siiffi- Haines, 8 Greenl. 362 } Richardson v. cieut number of trials had taken place, Stewart, 2Sei^. &R. 84; Whiter. Kyle, to determine fairly the validity of the 1 Serg. & R. 515 ; Calhoun v. Dunning, title, aod by injunction directed to the 4 Dall. 120 ; Cherry v. Robinson, 1 unsuccessful litigant compel him to Yeates, 625 ; Eldridge v. Hill, 2 Johns, cease from harassing his opponent by Cb. 281 ; Doe t7. Huddart, 2 Cromp. M. useless litigation. There was prhaps k R. 816 ; Jones v, De Graffenreid, 60 another reason why the English com- Ala. 145 ; Shaw v. Lindsey, ib. 844. In mon law refused to concede to the action Pennsylvania two verdicts the same way of ejectment, which is a personal action, become a bar to a third suit ; but if that conclusive effect which it gave to there be verdict against verdict, another all other actions, namely, the peculiar action may be brought, and judgment respect, almost sanctity, which the thereon will be conclusive. Gibson v. , feudal system attached to the tenure by Lyon, 115 U. S. 489, 446 ; Britton v. which real estate was held. So pecnl- Thornton, 112 U. S. 526. iarly sacred was the title to land with ^ Mr. Justice Miller, in delivering our ancestors that they were not willin<; judgment, said : ' It must be conceded that the claim to it should, like all that such is the general doctrine on other claims, be settled foivver by one the subject as applicable to cases tried trial in any ordinary personal action, under the common-law form of the ac- but permitted the unsuccessful party to tion of ejectment. One reason why the have other opportunity of establishing verdict cannot be made conclusive in his title. They, however, did concede to those cajies is obviously due to the ficti- those solemn actions, the writ of right tious character of the action. If a ques- and the writ of assize, the same force as tion is tried and determined between estoppels which they did to personal ac- John Doe, plaintiff, and A B, who tions in other cases.' comes in and is substituted defendant ' See Boyle v. Wallace, 81 Ala. 352, in place of Richard Roe, the casual 855 ; Cagger v. Lansing, 64 N. Y. 417; ejector, it is plain that A B cannot Dawley v. Brown, 79 N. Y. 390 ; Doyle plead the venlict and jutlgroent in bar ». Hallara, 21 Minn. 615 ; Sturdy v. of another suit brought by John Den Jackaway, 4 Wall. 174 ; Barrows w. a^inst Richard Fen, though the de- Kindred, ib. 899 ; Stephenson v, Wil- mise may be laid from the same lessor ; son, 50 Wis. 95 ; Wilson v. Henry, 40 for there is no privity between John Wis. 594; Phillpots ». Blasdell, lONev. Doe and John Den. Hence technically 19; Marshall v. Shafter, 32 Cal. 176; an estoppel could not be successfully Amesti v. Castro, 49 Cal. 825 ; Kimmel pleaded so long as a new fictitious v. Benna, 70 Mo. 52 ; Brownsville v. plaintiff could he used. It was this Cavazos, 100 U. S. 138 ; Union Petro- difficulty of enforcing at law the estop- leum Co. v» Bliven Petroleum Co., 72 pel of former verdicts and judgments in Penn. St. 173 ; Goi-dinier*s Appeal, 89 ejectment that induced courts of equity Penn. St. 528 ; McLaughlin v. McGee, 9 130 ESTOPPEL BY RECORD. [CHAP. III. Cases have arisen where the former judgment invoked as a bar was rendered in an action in which the parties were nomi- nally the same though the real parties were different In such cases the judgment has been held no bar.^ The case cited was an action in the name of the president of the Orphans' Court' for the use of Eshelman and his wife, to recover a distributive share of the estate of the wife's father. To this suit the defend atit pleaded in bar a former judgment against himself for the same matter, recovered in the name of the then sitting president of the Orphans* Court, for the use of one Herr, trustee of Eshel- man the present plaintiff. In the court below the plea was held good ; but on appeal judgment was reversed. Chief Justice Gibson said that it was true the former suit, like the present, was brought nominally by the president of the Orphans* Court ; but it was really for the use of Eshelman's assignees. He said that it was only by virtue of the maxim * communis error facit jus ' that the president of the Orphans' Court could sue at all in such a case ; but though it would be mischievous now to doubt the validity of such an action, it would be as much so to let it stand in the way of substantial justice for the sake of technical congruity. It is laid .down in Alabama that a judgment rendered by a judicial tribunal authorized to try contested elections is conclu- sive in a subsequent quo warranto by the state on the relation of the defeated contestant.^ But such a judgment clearly would not bar a subsequent inquiry into the facts by the state unless the first tribunal, like a state legislature or Congress, had exclu- sive jurisdiction.^ So it is held that a man who is not a party to a judgment in which he is interested, but from which he joins in appealing, is not estopped in another action by the judgment appealed from.* Judgments as a general rule conclude the parties only in the 79 Peiin. St. 217. The coDsent rule in People v. Hall, 80 N. Y. 117. See, ejectment creates no estoppel. Day v. however, Lee v. State, 49 Ala. 44. Case, 78 Ga. 58. » People v. Hall, 80 N. Y. 117 ; Peo- 1 Eshelman v. Shnman, 13 Penn. St. pie v. Mnrray, 78 N. Y. 535. See State 661. V. Hardie, 1 Ind. 42. * Davidson p. State, 68 Ala. 432 ; « MiyorH v. Oowell, 51 CaL 478. Monlton o. Reid, 54 Ala. 320. See BECT. III.] JUDGMENTS IN PERSONAM. . 181 character in which they sue or are sued ; ^ and therefore a judg- ment for or against an executor, administrator, assignee, trustee, agent, or attorney, as such, presumptively does not preclude him, in a different cause of action affecting his own proper person, from disputing the special findings in the former cause.^ And so appearing in an action as heir of A will not estop the party to claim the same property as devisee of A's widow,^ or as a creditor having a lien> There are some apparent hut perhaps no real exceptions to ibis rula Thus, as we have already seen, a judgment by default of plea against an administrator is a conclusive admission against him personally in an action by the creditor for a devastavit* This, however, is only an apparent exception. The former judg- ment in this case affects the administrator personally, since it is a conclusive admission that he has in hand assets of the de- ceased nnadministered at the time.® So judgment in regard to title against a trustee as representing the cestui que tnist will preclude him from claiming in the latter capacity adversely to the decision.^ Under certain circumstances interested persons are held bound by judgments when they were not in point of fact parties to the proceedings, by giving them due notice of the suit. This occurs, for example, wher^ the party notified is liable over to the notify- ing party to make good any recovery by the plaintiff; the notified party having opportunity as well as notice to appear.® In such 1 Leggett V, Great Northern Ry. Co., 267, explained in Mettere ». Brown, 1 1 Q. B. D. 699 ; Lord v, Wilcox, 99 Ind. Hurl. & C. 686, 691 ; post, p. 186. 491, 496 ; Lantz v. Maffett, 102 Ind.28, « Elliott v. Frakes, 71 Ind. 412. See 27 ; Elliott v. Frakes, 71 Ind. 412 ; Un- Lantz «. Maffett, 102 Ind. 23, 26. fried V, Huberer, 63 Ind. 67 ; Cronan * Lord v. Wilcox, 99 Ind. 491. V. Frizell, 42 111. 319 ; Mansfield v. * Leonard «. Simpson, 2 Bing. N. C. Hoa^land, 46111. 859; Stoops «. Woods, 176 ; Bock v. Leighton, 1 Salk. 310 ; 45 Cal. 489 ; Rathbone t>. Hooney, 68 ante. p. 78. N. Y. 468. So of other estoppels • Ibid. also. Jones v. l/mf^ 60 Ala. 498 (in ^ Corcoran v. Chesapeake Canal Co., pais). 94 U. S. 741. « Coke, Litt. 128 a; Robinson's Case, « Saveland v. Green, 86 Wis. 612, 6 Coke, 32 b ; Middleton's Case, ib. 622 ; Valentine r. Mahoney, 37 Cal. 28 b; Legge v. Edmonds, 26 L. J. Ch. 389 ; Russell v, Mallon, 88 Cal. 269 ; 125 ; Fenwick v, Thornton, Moody & Altschul v. Polack, 65 Cal. 683 ; Doug- M. 51 ; Parker v, Moore, 69 N. H. 464. las v. Fulda, 46 Cal. 692 ; Carr v. See Smith v. Morgan, 2 Moody & R. United States, 98 (J. S. 488 ; Morgan 132 ESTOPPEL BY RECORD. [CHAP. III. a case judgment against the defendant becomes conclusive evi- dence in an action by him against the person liable over to him. In Love v. Gibson ^ the plaintiff sued the defendant for contri- bution as co-surety in a bond. It appeared that the obligees had sued the plaintiff alone on the bond ; and that he thereupon gave notice to the present defendant, his co-surety, of the pen- dency of the suit The defendant denied his liability upon the bond, contending that as he was not a party to the former suit, the judgment did not bind him. But the court held him es- topped.^ So, if a landlord defends for and in the name of his tenant, and puts his title in issue in aid of his tenant's right of possession, judgment against the tenant will bar any subsequent action by the landlord against the party recovering the judgment ; the landlord's title has been adjudicated.^ The rule concerning the effect of notice to third persons to appear and defend suits the result of which may affect them is, V. Maldoon, S2 Ind. 847, 852 ; Brown v. qualification that the judgment must Taylor, 18 Vt 631. But the government have been fairly and honestly obtained, cannot be estopped by notice from its See also Milford v. Holbrook, 9 Allen, tenants or agents to defend proceedings 17; Annett v. Terry, 35 N. Y. 256; against them. Carr v. United States. Thomas v. Hubbell, 15 N. Y. 405 ; 1 2 Fla. 598. s. c. 35 N. Y. 120 ; Chicago v, Rob- * The court referred with approba- bins, 2 Black, 418 ; Huzzard v, Nagle, tioii to the language of Mr. Justice 40 Penn. St. 178 ; Carlton v. Davis, 8 BuUer in Duffield v. Scott, 8 T. R. 374, Allen, 94 ; Tracy v, Goodwin, 5 Allen, where it was said : * The purpose of 409 ; State v. Roswell, 14 Ohio St. 73 ; giving notice is not in order to give a Lipscomb v. Postell, 38 Miss. 476 ; Lyon ground of action ; but if a demand be v. Northrup, 17 Iowa, 314 ; McNamee v. made which the person indemnifying is Moorland, 26 Iowa, 96 ; Dane v. Gil- bound to pay, and notice be given to more, 51 Maine, 544; Brown v. Bradford, him, and he refuse to defend the action, 30 Ga. 927; Enapp v. Marlboro, 34 Vt. in consequence of which the person to 235. The court then stated the rule as be indemnified is obliged to pay the follows : * If the surety has notice of the demand, that is equivalent to a judg- suit, and he does not choose to defend ment, and estops the other party from it, he thereby waives all the defences he saying that the defendant in the first might otherwise have to the introduc- action is not bound to pay the money.' tion of the instrument to be introduced Several other leading authorities were in evidence ; and his right is gone to also cited, showing that the doctrine contest its validity in a collateral way was well settled. See Smith v. Cromp- in a suit brought by the co-surety for ton, 3 Bam. & Ad. 407; Rip v. Brigham, contribution, for it must be deemed res 6 Johns. 158 ; Swartwout v, Payne, judicata.' Love v. Gibson, 2 Fla. 598. 19 Johns. 294 ; People v. Judges of • Valentine v. Mahoney, 87 Cal. Monroe Co., 1 Wend. 19 ; Clark v. 889 ; Russell t^. Mallon, 38 Cal. 259 ; CarringtoQ, 7 Cranch, 808, adding the Altschul v. Polack, 55 CaL 638. SECT. III.] JUDGMENTS IN PEBSONAtf. 188 iudeed, somewhat wider than these special examples might indi- cate ; its full extent is thus set forth by Mr. Justice Bell in Littleton v, Kichardson : ^ When a person is responsible over to another, either by operation of law or by express contract, and he is duly notified of the pendency of the suit and requested to take upon himself the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means of controverting the claim as if he were the real and nominal party upon the record In every such case if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him whether he has appeared or not, for he is bound to take up the cause at that point, in exoneration of the defendant; the latter need not longer defend.^ That was the case of a party who had placed obstructions in a highway ; who, being an- swerable to the town, was held bound by judgment in favor of a traveller against the town, which had given him notice of the suit The rule in this case is referred to with approval in Boston V. Worthington ^ and in Chamberlain v. Preble.* In the latter case the plaintiff sued upon a breach of warranty in a convey- ance of real estate in fee simple, the breach being that one Comer had recovered judgment against the plsdntiff as tenant by the curtesy of the premises. In support of his action, and to show paramount title in Comer in the land conveyed with war- ranty by the defendant to one Baldwin under whom the plaintiff claimed by waiTanty deed, he produced the judgment mentioned, recovered by Comer in a writ of entry. It appeared that when that suit was brought, the present plaintiff notified Baldwin, who assumed the defence, employed counsel, and notified the present defendant, Preble (Baldwin's grantor), of the pendency of the action, and requested him to assume the defence. It did not appear that Preble took, any part in the defence. The judg- ment was treated as conclusive upon him, though entered upon an agreed statement of facts, and though there was an erroneous 1 S4 N. H. 179. 187. « 11 Allen, 870. See aim Lee v. * Morgan v. Muldoon, 82 Ind. 847 ; Clark, 1 Hill, 56 ; Rapelye v. Prince, Jackson v. Maisb, 5 Wend. 44. 4 Hill, 119 ; Brid^port Ins. Co. v, « 10 Gray, 496. Wilson, 34 N. Y. 276. 134 ESTOPPEL BY RECORD. [CHAP. III. recital as to some of the facts ; provided the facts were agreed to in good faith.^ In some cases parties liable over by way of indemnity are bound by judgment against the person to whom they are so liable even without notice, as where they have so stipulated with the latter.^ Such cases will of course depend upon the construction to be placed on the contract of indemnity. On the other hand, since there can be no contribution between wrong- doers acting knowingly, no notice by one wrongdoer or defend- ant to another will be effectual to bind the latter ; though had it not been for the participation of the defendant, the notice would have been good.' Of course the rule of estoppel does not prevail in other cases where parties interested are not legally notified,^ even though they have full knowledge of the proceedings.* In Jones v. Oswald, before the Court of Appeals of South Carolina, the plaintiff brought an action against the sureties of Oswald, a sheriff, on their oiBcial bond, alleging non-payment of money collected on execution. The defendants pleaded in bar a former judgment against Oswald for the same money. The plea was overruled in the court below ; and the decision was sustained on appeal. Mr. Justice Johnson said that a judgment against one of a number of joint and several obligors without satisfaction was no bar to a recovery against the others. Whatever might have been the effect of the recovery in regard to Oswald, in this case the liability of the sureties remained precisely as it was before the former trial. They were not parties to the suit, and would not have been liable in the first form of action. ^ See also, concerninfi; notice to war- * Jones v, Oswald, 2 Bail. 214 ; rantors, BeU v. Dagg, 60 N. Y. 528 ; Kramph v. Hatz, 62 Penn. St^ 525 ; Blasdale v. Babcock, 1 Johns. 517 ; Chant v. Reynolds, 49 Cal. 218 ; Val- Kelly V. Dutch Church, 2 Hill, 105 ; entine v. Mahoney, 87 Cal. 889 ; Alt- Collingwood v. Imn, 8 Watts, 806 ; schul t;. Polack, 55 Cal. 683. Indeed, Paul V. Witman, 3 Watts & S. 407. though a party liable over was duly ^ Thomas V. Hubbell, 15 N. Y. 405; notified, if suit was afterwards dis- 8. G. 80 N. Y. 120 ; Fay v. Ames, 44 missed in regard to him and his defence Barb. 827 ; Bridgeport Ins. Co. v. Wil- stricken from the record, the judgment son, 84 N. Y. 275. will not estop him. Altschul v, Polack, » Knox V. Sterling, 78 lU. 214 ; Scv- enpra. erin v. Edtly, 52 111. 189 ; Chicago v. * Brooklyn v. Insurance Co., 99 Bobbins, 4 Wall. 667. U. S. 862. SECT. UI.] JUDGMENTS IN PERSONAM. 185 Indeed, judgment does not necessarily bind alL the paities to an action ; for it may happen that a special issue has been joined in a case in which there are more than two parties, between a portion of them only. In such a case the decision of the issue has no binding force against the others ^ except, of course, so far as it may without fraud establish some special relation between such particular parties. The question whether one who appeared as a witness in a for- mer action is estopped by the judgment in a subsequent suit between one of the parties and the witness has arisen, and has been decided in the negative.^ Yorks v. Steele, just cited, was an action to recover possession of a horse. The plaintiff was nonsuited at the trial on the ground that he had appeared as a witness for the then defendant in an action successfully brought by the present defendant against a sheriff who had taken the horse in execution in favor of another against himself, the pres^ ent plaintiff. This was adjudged error.® The case may be different if the witness were for any reason liable over to the ^ Hanrey v. Osborne, 56 Ind. 635. ' In delivering judgment Mr. Jus- Bat in a case of separate pleading by tice Johnson said : ' It is a general if two defendants in a proceeding to quiet not universal principle that an action title, the finding that one of them owns and judgment between two persons shaU the land concludes the other. Devin v. not bind or afi'ect a third person who Ottnmwa, 53 Iowa, 461. could not be admitted to make a de- ^ Yorks V. Steele, 50 Barb. 897 ; fence, to examine witnesses, or to Parker v, Moore, 59 N. H. 454 ; Wright appeal from the judgment. Case v. V. Andrews, 180 Mass. 149 ; Blackwood Reeve, 14 Johns. 79 ; Castle v. Noyes, V. Brown, 82 Mich. 104 ; Schroeder v. 14 N. Y. 829, 882 ; Greenl. Ev. § 528. Lahmtan, 26 Minn. 87. See Hobbs v. ... It is of no consequence, prima McLean, 117 U. S. 567, 580. So, a facie, that the plaintiff was a witness party is not estopped to deny the state- for the defendant in the action brought ment of a witness by the fact that the by this defendant. He had no right as witness had, in former trials of the same a witness to examine or cross-examine action, made the same statement with- other witnesses, or to call other wit- out contradiction. McCormick v, Penn- nesses, who might have a better knowl- sylvania Cent. R. Co., 99 N. Y. 65. edge of the facts than himself. In Nor is one estopped to deny what one short, as a mere witness he had no has admitted on the witness stand, charge or control of the case whatever. Wilkinson v. Wilson, 71 Oa. 497 (Con- And supposing that judgment was erro- tra in Louisiana. Folger v. Palmer, 86 neous for any reason, he had no right of La. An. 743; ante, p. 114, note 1.) appeal, and no standing by which he Unless, indeed, in a proper case it has could be heard to correct the error.' been acted upon. Leinkauff v. Mnnter, 76 Ala. 194 ; Hobbs v. McLean, supra. 136 ESTOPPEL BY RECORD. [CHAP. III. defendant to make him good in case of judgment against him. In Barney v. Dewey ^ the defendant had fraudulently induced the plaintiff to buy a horae as his. The horse really belonged to an- other, who now brought trover for it ; in which action the defend- ant appeared as a witness for the then plaintiff, who prevailed. Such appearance was thought tantamount to an averment of no- tice to defend, estopping the witness to question the judgment So too a witness who is the or a real party in interest may be estopped by the judgment.^ Again, a judgment for or against one properly occupying a representative position concludes, in ordinary cases, the persons represented.^ But it may be a difficult question whether such persons were duly represented, or how far they were repi*esented. In equity, to put a single case, it is usually necessary to join the cestui que trust with the trustee in order to obtain a decree which shall bind the former, for generally they are treated as inde- pendent of each other ;^ but in some cases it is allowed the trustee to represent the beneficiary.^ And the result, of course, is that in the absence of fraud the castuis que trust will be bound by, and after the trust terminates may take advantage of, the decree and the proceedings thereunder.® Thus, it is well settled that the cestuis que trust of a mortgagee are not neces- sary parties to a bill of foreclosure.^ So too when the benefi- ciaries are so numerous that it would be very inconvenient to bring them all before the court, it has been considered sufficient for part of them to sue as plaintiffs on behalf of all.^ But this 1 13 Johns. 224. in hare not been detennined. U|)on the > Cole V. Favorite, 69 111. 457 ; Ben- termination of the trast any of them nitt V. Star Mining Co., 119 111. 9, 15. may have the benefit of the judgment. * Graham v, Boston R. Co., 118 Ibid. U. S. 161, corporation ; Harmon v. ^ Johnson v. Robertson* 81 Md. 476 ; Auditor of Public Accta., 123 lU. 122, Corcoran v. Chesapeake Canal Co., 94 130, municipal corporation; Bennitt v. U. S. 741. ^r Mining Co., 119 lU. 9 j Cole v. ^ Willink v. Morris Canal Co., 3 Favorite, 69 111. 457. Green's Ch. 377 ; Van Vechten v, Terry, * Collins v. Loflftus, 10 Leigh, 5 ; 2 Johns. Ch. 197 ; New Jer8<*y Frank- Shay V. McNamara, 54 Cal. 169. Unite .Co. v, Amea, 1 Beasl. Ch. 507 ; * Whitford V. Crooks, 54 Mich. 261. Johnson v, Robertson, 31 Md. 476. And where there are several cestuis que * Adair v. New River Co., 11 Vea. trust, it makes no difference after a re- 429 ; Cockburn v. Thotn{if>on, 16 Ves. covery of property by the trustee for 321 ; Harrison v. Stewardson, 2 Hare^ them that their respective rights there- 530. 8£CT. III.] JUDGMENTS IN PERSONAM. 137 rule applies only to cases ivbere there is one general right in all the parties ; that is, where the chai'acter of all parties, so far as the right is concerned, is homogeneous.^ In other cases, not- withstanding the inconvenience arising from a great number of parties, they must all be before the court in order to be bound by the adjudication.^ This in the case cited was said of cred- itors in a question of priority of charging real estate ; but the principle is probably general, and equally applicable to similar questions affecting cestuis que trust. It has been a matter of doubt whether a judgment obtained against a corporation could be used against a stockholder thereof, under statutes imposing a personal liability on the members of the corporation for the corporation debts.^ Mr. Chancellor Kent had held the negative ; but his judgment was reversed by the Court of Errors.* The doctrine held on the appeal is generally understood as deciding that the judgment establishes a prima tacie but not conclusive liability on the part of the stockholder.^ But it has since been doubted whether th^ Couit of Errors in- tended to go even so far as this ; ^ and later still in Belmont v. Coleman ^ a majority of the Court of Appeals were unwilling to concur in the dictum of one of their number that such judgment was prima facie evidence against a stockholder.^ It is clear that the corporation cannot be estopped by judgment against the stockholders individually.^ 1 Newton v. Egmont, 6 Sim. ISO, * Slee v. Bloom, 5 Johns. Ch. 866 ; 187. Comp. Thames v. Jones, 97 N. reversed, 19 Johns. 456 ; s. c. 20 Johns. Gar. 121. 669. « Newton v. Egmont, snpra. * Moss v. Oakley, 2 Hill, 265. * Judgment against a corporation of * Moss v. McCnllough, 5 Hill, 131 ; eouiae binds the members thereof, in 8. c. 7 Barb. 279 ; 5 Denio, 567. the absence of fraud, for all the pur- ^ 21 N. Y. 96. poses of the judgment. Graham v. * See also Squires ». Brown, 22 How. Boston E. Co., 118 U. 8. 161. So, Pr. 86 ;. MiUer v. White, 59 Barb. 434 ; jndginent against a municipality con- fi. c. rev. 13 Abb. Pr. N. R. 186, note ; eludes the citizens thereof individuaUy. Hall v, Sigel, 13 Abb. Pr. N. s. 178 ; Harmon v. Auditor of Public Accounts, Lowry v. Inman, 2 Sweeny, 117 ; s. c. 124 111. 122, 130 ; State v. Rniuey, 74 46 N. Y. 119 ; Brooks v. Hill, 1 Mich. Mo. 229 ; Morris Co. r. Hinchman, 81 124 ; Berger v, Williams, 4 McLean, Kans. 729, 737 ; Lyman v. Fans, 53 677 ; Merchants' Bank t>. Chandler, 19 Iowa, 498 ; Clark v. Wolf, 29 Iowa, Wis. 434. 197. See, however, Jenkins v, Robert- • Covington & L. R. Co. e. Bowlei^ SOD, L. U. 1 H. L. Scotch, 117, 121. 9 Bush, 468. 138 ESTOPPEL BY EECOED. [CBAP. III. The effect of a judgment upon garnishment or trustee process in ^uits by the original creditor of the garnishee or trustee against the latter has frequently arisen.^ Compulsory payment in full is of course a discharge. Such a case, it was tliought, was Wetter v. Rucker ; ^ but it appeared as matter of law that the payment by the garnishees to the judgment creditor of their own creditor was not a compulsory but a voluntary payment. The court therefore held that the garnishees were not discharged. A more difl&cult point is presented by the question whether judgment against the garnishee i^^Ao?^^ satisfaction bai-s an action by his original creditor. The English doctrine in Savage's Ca^e* is that attachment and condemueltion are a good discharge. So in Maine judgment against the trustee having been rendered and duly recorded is conclusive upon the creditor of the trustee to the extent of the judgment,* provided the judgment be final. Judgment by default will not discharge the trustee.^ The same doctrine prevails in other states.^ But in some of the states the garnishee is not considered discharged without satisfaction.^ The better opinion, however, would seem to be that the garnishee is discharged, as against his creditor, as soon as the law places him under a compulsory obligation to pay the plaintiff in attach- ment ; otherwise he might be subjected to much unnecessary annoyance without fault of his own. But according to the custom of London, execution must be 1 The trustee or ganiishee (duly no- Matthews v, Houghton, 11 Maine, tified) is bound by the judgment against S77. himself, though he failed to appear and * Sai^geant v. Andrews, 3 Oreenl. was defaulted. Flanagan v. Cutter, 121 199. In Florida: SeHsions v. Stevens, Mass. 96, overruling a dictum in Brown 1 Fla. 288. In Massachusetts, execu- V. Neale, 8 Allen, 74. tion must have issued: Meriam v. Kund* >1 Brod. & B. 491; 8. c. 4 B. lett, 18 Pick. 511. See also Cheongwo Mi>ore, 172. v. Jones, 8 Wash. C. C. 859. So in ' 1 Salk. 291. But in note 1 to Maryland: Brown v. Sunimerville, 8 Md. Turbill's Case, 1 Wms. Sauud. 660, it 444. And in Pennsylvania : I^owry t?. is said the garnishee ' shall be quit Lumberman's Bank, 2 Watts & S. 210. against the other after execution sued * In Indiana : Covert v. Nelson, 8 out by the plaintiff ; ' and this seems to Blackf. 265. be the modern English rule. Wetter v, ^ In Alabama : Cook v. Field, 3 Ala. Backer, 1 Bixxl. & B. 491 ; and other 53. In Texas : Farmer v, Simpson, 6 cases, supra. Tex. 308. In Georgia : Brannon v. « McAllister v. Brooks, 22 Maine, Noble, 8 Oa. 549. See also Flower v, 80 ; Norris v. Hall, 18 Maine, 332 ; Parker, 8 Mason, 247. SECT, m.] JUDGMENTS IN PERSONAM. 189 executed before the garnishee is discharged from liability to his own cieditor. In a case before the Common Pleas ^ the defend- ant to an action for money had and received pleaded a recovery by foreign attachment at the suit of a creditor of the plaintiff, and that the creditor had had execution. The plaintiff replied that the execution had not been executed; upon which the defendant joined issue. Verdict was found for the plaintiff, subject to the opinion of the court upon the points of law and fact involved ; and the court ruled that the replication was good. It was said that if the execution in the garnishment process had not been executed, the garnishee was not discharged.' If, however, the execution was levied and satisfied, the gar- nishee is protected and discharged to the extent of the amount paid, though the judgment be erroneous, ^ provided he availed himself of aU defences against the attaching creditor.^ And this too, though the proceeding be in a foreign jurisdiction.^ The original creditor of the* garnishee is not, however, estopped to prove that his claim is greater than that admitted by the gar- nishee ; otherwise it would be in the power of the latter to prac- tise an irreparable fraud upon the former.^ Nor is the garnishee's ^ Magrath v. Hardy, 4 Bing. N. C. ter v, Vinceut, 6 Vt. 614. See also 788. Hirth v. Pfeifle, 42 Mich. 81. ' See Home Ins. Co. v. Gamble, 14 Without pursuing this matter into Ma 407 ; Bumap v, Campbell, 6 Gray, detail, we give the concise statement of 241 ; Brown v. Summerville, 8 Md. Chief Justice Drake of the rules upon 444. the subject (Attachment, § 711, a work * Brown v. Dudley, 83 N. H. 511 ; to which it is hardly necessary to direct Steams v. Wrisley, 30 Vt. 661 ; Stevens the reader's particular attention) : — r. Fisher, 30 Vt. 200 ; Dole v. Bout- * 1. The judgment against the gar- well, 1 Allen, 286 ; Wise v. Hilton, 4 nishee, under which he alleges he made Greenl. 435; Killsar.Lermond, 6Greenl. the payment, must be proved. Barton 116 ; Andenton V. Young, 21 Penn. St. v. Smith, 7 Iowa, 85. 443 ; Drake, Attachment, § 706, and * 2. It must have been a valid judg- cases cited. ment No payment made under a void * Funkhoiiser v. How, 24 Mo. 44 ; judgment, however apparently regular Gates V. Kerhy, 18 Mo. 157 ; Dobbins the proceedings may have been, can V, Hyde, 87 Mo. 114 ; Newton v, Wal- protect the garnishee against a subse- tew. 16 Ark. 216 ; poet, p. 141. quent payment to the defendant [i. e. * Barrow v. West, 28 Pick. 270 ; the garnishee's creditor] or his repre- Taylor v. Phelps, 1 Har. & G. 492 ; sentatives. Thus where an attachment Drake, Attachment, supra. was obtained against one supposed to * Robeson v. Carpenter. 7 Mart, N. 8. be living in a foreign country, but who 80 ; Brown n. Dudley, 83 N. H. 51 1 ; was dead when the suit was commenced. Tains 9. Bullitt, 85 Penn. St. 308 ; Baz- it was held that a payment made by a 140 ESTOPPEL BT RECORD. [CHAP. Ul. creditor estopped by judgment in favor of the garnishee in the garnishee under execation was no de* the conrt have jurisdiction of the sub- fence against an action by the defend- ject-matter and the parties, a payment ant's administrator ; the whole proceed- on execution under its judgment will iugs in the suit being a mere nullity, protect the garnishee though the judg- Loring v. Folger, 7 Gray, 505 ; Matthey meut may hare been irregular and re- V. Wiseman, 18 Com. B. n. s. 657. See vendble on error (Lomerson v, Hoff- Westoby v. Day, 2 El. k, B. 605. Nor man, 4 Zabr. 674 ; Pierce v. Carleton, will a judgment against a garnishee pro- 12 111. 358; Gunn v. Howell, 35 Ala. tect him against a subsequent recoveiy 144 ; Webster v, Lowell, 2 Allen, 123); in favor of one who had previously to and a reversal of it by the defendant the garnishment taken an assignment for irregularity, after payment by the of the debt from the defendant in the garnishee, will not invalidate the pay- attachment, the garnishee having no- ment Duncan v. Ware, 5 Stew. & P. tice of the assignment Dobbins v. 119. But if the garnishee contest the Hyde, 37 Mo. 114. jurisdiction of the court, and his objec- ts. The payment must not have tion is overruled and judgment' ren- been voluntary. Any payment not dered against him, a payment made by made under execution will be regarded him under ^at judgment cannot be as voluntary, and therefore no protec- collaterally impeached elsewhere on the tion to the garnishee. Wetter v. Kucker, ground that the court had no jurisdic- 1 Brod. & B. 491, - and cases cited tion. Its decision on that point is oon- supra. elusive in favor of the garnishee. Guuu *4. The payment must be actual, v. Howell, 35 Ala. 144; Wyatt v, and not simulated or contrived. Thus, Rambo, 29 Ala. 510 ; Thayer v. Tyler, when certain persons were charged as 10 Gray, 164; Pratt v. Cunliff, 9 Allen, garnishees, and credited the plaintiff on 90. their books with the amount of the '6. Though the court have juria- judgment, and debited the defendant diction of the parties, and its judgment with the same amount, but did not be valid against the garnishee, yet if in fact pay the naoney, it was held to the law require the plaintiff as a condi- be no payment. Wetter v. Rucker, tion precedent to obtaining execution to supra. do a particular act, and without per- ' 5. The judgment under which the forming the condition he obtain execu- payment was made must have been ren- tion, and the garnishee make payment dered by a court having jurisdiction of under it, the payment will be no pro- the subject-matter and the parties, (a) tection ; for it is in the garnishee's If there be a defect in this respect, the power to resist the payment until the payment will be regarded as voluntary, condition be fulfilled ; failing in which and therefore unavailing. Harmon v. his payment is regarded as voluntary. Birchard, 8 Blackf. 418; Ford«. Hurd, Myers v. Uhrich, 1 Binn. 25; Moyer 4 Smedes ft M. 683 ; Robertson v. Rob- v. Lobengeir, 4 Watts, 390 ; Oldham v. arts, 1 A. K. Marsh. 247 ; Richardson Ledbetter, 1 How. (Miss.) 43 ; Gnsatm V. Hickman, 22 Ind. 244. If, however, v. Reynolds, ib. &70.' (a) When the defendant was personally before the court, the garnishee is not interested in the matter of jurisdiction as against the defendarU ; but if he is not personally before the court, the garnishee is concerned in the question of juris- diction both as to the defendant and as to himself. Drake, Attachment, § 693. See Wheeler o. Aldrich, 13 Gray» 51 ; Morrison v. New Bedford Inst for Sav- ings, 7 Gray, 269; Thayer v. Tyler, 10 Gray, 164; Pratt p. Cunliff, 9 Allen, 90. SECT, in.] JUDGMENTS IN PERSONAM. 141 garnishment proceedings.^ The creditor has nothing to do with that matter. Though it is a general principle that the payment by a gar- nishee of the full amount of his indebtedness will bar a proceed- ing against him on the debt by his own creditor, the doctrine is to be received with this qualification, that the judgment on the garnishment process was fairly obtained. If the garnishee was guilty of any collusion or fraud, he will be liable to pay a second time.* In the case first cited the defendant had been summoned as trustee or garnishee of the plaintiff in an action in Connect- icut against the latter instituted subsequently to the present suit ; he failed then to make any disclosure to the Connecticut coui-t of the pendency of the action by his creditor in Massachu- setts ; and the court held that in view of this fact, which would have been sufficient to abate the trustee process,^ he must pay again. In Wilkinson v. Hall, above cited, the defendant, maker of a negotiable promissory note, had been served with tnistee process in Vermont after the negotiation of the note, and charged as trustee of the payee. The indorsee and plaintiff offered to prove that the defendant had knowledge of the transfer of the paper before the service in Vermont ; which fact, had it there been disclosed, would have defeated the garnishment* The court said that the fact of negotiation before the service of the trustee process was most material to the right determination of the cause ; and if the defendant had knowledge of the transfer, he was bound to disclose it. The garnishee to be protected against his creditor should, in a word, avail himself of all defences which exist at the time in regard to the debt owed by him (the garnishee) to his own creditor.* A judgment discharging the garnishee for holding personal property of the principal defendant under a fraudulent and void 1 Rnffu. Ruff, 85 Penn. St 838. * Barney v. Douglass, 19 Vt. 98; * Whipple V. Bobbins, 97 Mass. 107; Kimball v. Gay, Id Vt. 131; Chase v. Wilkinson v. Hall, 6 Gray, 568 ; Hall Haughton, ib. 594. V. Blake, 13 Mass. 153 ; 2 Kent, Com. ^ Pierce v. Chicago R. Co., 86 Wis* 119. 288 ; ante, p. 189, * See Wallace «. McOonnell, 18 Pe- ien^l86; Embreev. Hanna, 5 Johns^lOO. 142 ESTOPPEL BY RECORD. [CHAP. III. conveyance will bar an action on the case directly against the garnishee for aiding in the same alleged fmudulent tiunsfer of property to secure it from the creditors of the former defendant.^ The court in the case cited said that the validity or invalidity of the sale from the former to the present defendant was an issue between the plaintiiT and the garnishee in that suit precisely as in the present. The plaintiff bad failed in the contest against the garnishee ; and the judgment of the court had been that the sale was valid, and consequently that the garnishee must be dischai^ed. If the court bad regarded the sale as fraudulent, the garnishee must have been charged Having ascertained the effect of judgment estoppels upon the actual parties to the record, let us now inquire into the effect and operation of personal judgments against those who were in no way parties to the former suit, but who still, as being privies, were affected by the judgment In the law of estoppel one person becomes privy of another (1) by succeeding to the posi- tion of that other as regards the subject of the estoppel, (2) by holding in subordination to that other. Lord Coke divides privity into privity in law, i e. by operation of law, as tenant by the curtesy ; privity in blood, as in the case of ancestor and heir ; and privity in estate, as by subordination of tenure repre- sented by the case of feoffor and feoffee. These divisions are only important, as far as this work is concerned, in defining the extent of the doctrine of privity ; and as the rules of law are not different in questions of estoppel in these divisions, it will not be necessary to present them separately. But it should be noticed that the ground of privity is property and not personal relation. To make a man a privy to an action he must have acquired an interest in the subject-matter of the action either by inheritance, succession, or purchase from a party subsequently to the action,* or he must hold property subordi- 1 Bunker v. Tufts, 67 Maine, 417. ter v. Bakersfield Assoc, 64 Cal. 42 ; « Bryan v, Malloy, 90 N. Car. 608, Coles p. AUen, 64 Ala. 98. Hence A 611 ; Dooleyr. Potter, 140 Mass. 49, 68 and B, claiming under deeds made by (doubting Stevens v. Miner, 6 Gray, 429, the same grantor before the suit, are not note) ; Scates «. King, 110 111. 456 ; privies under the judgment Bryan r. Zoeller «. RUey, 100 N. Y. 102 ; Ches- Malloy, supra, fifo of C, who acquired SECT. III.] JUDGMENTS IN PERSONAM. 143 nately. Thus, to give aii illustration of privity by succession, an assignee is not estopped by judgment against his assignor in a suit by or against the assignor alone, instituted after the assignment was made,^ though if the judgment had preceded the assignment the case would have been different.^ Nor is a grantee of land affected by judgment concerning the property against his grantor in the suit of a third person begun after the gi-ant.^ Judgment in such cases bars those only whose interest is acquired after the suit ; ^ and not even those if the title ac- quired since the judgment was some title paramount not in issue legally in the former suit.** Newly acquired rights of a distinct nature cannot be bound by any kind of estoppel except the peculiar kind called * title by estoppel/ * The case of privity by subordination may be illustrated, as we have seen, by the common-law relation of feoffor and feoffee. That is Coke's illustration. A more familiar one to lawyers of the present time is afforded by the relation of landlord and tenant A lawful judgment which deprives the landlord of the estate deprives the tenant, of necessity, of his subordinate right But there is this important difference between privity by succession and privity by subordination. In privity by suc- title from B after the snit began, for he on aheence of title as the result of that would be DO better off than B. A fore- act, and not on privity. Grantor and closure decree, however, could be offered grantee are not in privity in the law of in evidence by one claiming under it, as estoppel, as will be seen in chapter 8. a link in his chain of title, against one Further, concerning privity, see Mayo claiming in opposition to it. Scates v. Wood, 50 Cal. 171 ; Barrett v. Bii^, V, King, supra. ib. 655. Privity in estate in estoppel is 1 Todd w. Floumoy, '66 Ala. 99 ; rightly put in 20 Am. Law Rev. 407 et Coles V. Allen, 64 Ala. 98. Of course .«eq. bona fide purchasers without notice are * Shay v. McNamara, 64 Cal. 169 ; not privies. Hagerv. Spect, 52Ca]. 679. CampbeU v. Hall, 16 N. Y. 575; Doe ^ Not where the assignee represents v. Derby, 1 Ad. & E. 783. others, however, as e. g. creditors of the • Bickett r. Nash, 101 N. C. 579 ; assignor. Of course judgment for or Johnson v, Farlow, 18 Ired. 84. There against an assignee in a suit with a third isnodistinction between judgmenttonch- person has no force in regard to the as- ing land and judgment touching person- signor. Donald v. Gregory, 41 Iowa, alty. Bickett 9. Nash, supra. 513. * See e. g. Mowatt v. Castle Steel Co., * Mathes v. Cover, 48 Iowa, 512. 34 Ch. D. 68, estoppel in pais ; East Inde<^, the true reason why a grantee Alabama R. Co. v. Tennessee R. Co., is affected in any case by the prior act 78 Ala. 274, same. See also note 2 to of his grantor rests 'either on notice or the first page of chapter 18. \ 144 ESTOPPEL BY RECORD. [CHAP. III. cession the privy takes, commonly at least, as a volunteer, i. e, without value ; hence a party, by joining in a collusive judg- ment, could bind the mepe privy. In privity by subordination, however, the privy, commonly at least, has taken for value; hence the fraud of the party to a collusive judgment would not bar him. Fraud bars the wrongdoer and volunteers under him, not innocent purchasers for value. The rule, however, under either aspect of privity, is that a valid judgment is conclusive, not only against the actual parties to the particular litigation, but also against all persons who claim under them as privies. The doctrine is illustrated in Regina v. Blakemore.^ The defendant was indicted for the non-repair of a highway which it was alleged he was bound to repair ratione tenurse, in respect of certain lands called Sawpit. To prove this liability the recoixi of the conviction of one under whom the defendant claimed was produced, in an indictment for the non-repair of the same premises, alleging his liability to repair ratione tenurse. And the record was Held conclusive. The plaintiff in Adams v. Barnes^ brought an action to recover certain lands, in which the following facts appeared : The defendant Barnes had loaned money to one Ingersoll on a mortgage of the premises in question. Subsequently he brought an action against Ingersoll to recover possession, in which suit the latter pleaded usury. But judgment was given for Barnes, the present defendant; and he was put into possession by the sheriff. Afterwards Ingersoll sold and conveyed all his right, title, and interest in the premises to the present plaintiff, who brought this action to recover the premises. He offered evi- dence to prove usury in the original contract between Barnes and Ingersoll, his grantor ; but the defendant contended that he was estopped by the former judgment, and the court sustained the objection. Mr. Justice Jackson said that Ingersoll would have been estopped ; and it was clear that the plaintiff was also estopped. It was such an estoppel as ran with the land, and extended to all who were privy in estate to either of the parties to the former judgment Such an estoppel made part of the title to the land, and extended to all who claimed under either of the 1 2 Den. Cr. C 410. « 17 Mass. 865. SECT. III.] JUDGMENTS IN PERSONAM. 145 parties. By the fonner judgment IngersoU had lost his title to the land, and Barnes had acquired a right which was inde- feasible as between him and Ingersoll to hold possession of the laud until the debt was paid. And it would be highly inequita- ble if Ingersoll could convey to a stranger the right to bring Barnes's title again into controversy. Ingersoll after the judg- ment had no estate left in him except the right to redeem ; and his grantee could not claim any greater estate. The learned judge stated further that the present estoppel was also founded on those principles of law which were intended to repress liti- gation. If the plaintiff could now contest Barnes's title under the mortgage, Ingersoll must have assigned him a mere right of action, which was prohibited by law. And again, if the plaintiff could purchase that right of action, he could sell it ; and there- fore if he should try this action on its merits and fail to recover, he might assign the right to another, and the assignee might after suit assign to a third, and so on. In Pritchard v. Hitchcock ^ the plaintiff sued the defendant as guarantor of the acceptor of a bill of exchange ; and the latter pleaded payment by the acceptor. The facts were that the acceptor when in a state of complete insolvency had paid the amount to the plaintiff; but the money was subsequently recovered from the plaintiff in an action by the acceptor's as- signees in bankruptcy. The guarantor now sued contended that the payment by the acceptor to the plaintiff was a satis- faction. The plaintiff, on the other hand, urged that tlfe re- covery by the assignees was conclusive evidence against the guarantor that they were entitled to the money ; and 'this being the case that the debt had not been satisfied. The court held the judgment to be evidence, but ruled that it was not conclu- sive. The decision shows that in the relation of guarantor and principal no privity in the sense in which the law of estoppel is applied exists ; and the same is true by the weight of authority of the relation of surety and principal, co-sureties inter se,*'* prin- 1 6 Man. & G. 151 ; 6 Scott N. B. sureties is no evidence of the common S51. liability of the two, against the other < Means v. Hicks, 65 Ala. 241, hold- for contribution, if he was not a {Murty ing that judgment against one of two to the former suit 10 146 ESTOPPEL BY RECORD. [CHAP. III. cipal and agent,^ and the like cases where parties are answer- able over.^ There is no succession of rights and duties to the new party in such cases. Nor is there any just ground for holding with some of the cases ^ that the judgment should still be conclusive in the absence of fraud; unless the surety has agreed to pay whatever may be found due on the judgment* It is enough that the judgment has been held prima facie evidence of the surety's liability.* The relationship of privity does not exist at common law ^ between administrator or executor and heir or devisee so as to make a judgment against the decedent's representative binding 1 Wamer v. Comstock, 55 Mich. In Stoops v. Whistler the court referred 616, 620. to Slee v. Bloom, 20 Johns. 669, and < Ex parte Toaug, 17 Ch. D. 668, Bergen v. Williams, 4 McLean, 125. C. A., following Douglass t7. How- It was admitted that Douglass v, land, 24 Wend. 85 ; State v. Wood- Rowland, 24 Wend. 85, 58, was contra, side, 7 Ired. 296 ; McKellar v. Bowell, Every distinct party should have the 4 Hawks, 84 ; Beall v. Beck, 8 Har. k right to try his own case. The prin- MuH. 242. See also King v. Norman, cipal ma}* be hostile to the surety, or 4 C. 6. 884 ; Stewart v. Thomas, 45 Mo. indifferent to the surety's interests, and 42. The early case of Baker v, Preston, the surety ignorant of the fact. It is Gilmer (Va.), 235, to the contrary in conceded in Martin v. Tally, 72 Ala. regard to principal and surety, with a 28, 80, that the judgment does not bind few cases which followed it (State v. the surety in a case in which he had no Grammer, 29 Ind. 530 ; State v. Pra- - right to appear and defend. The law ther, 44 Ind. 287), has been effectually of Alabama is statutory. Ibid, overruled. Munford v. Overseers, 2 * Cases in note 2, supra, especially Rand. 313 ; Jacobs v. Hill, 2 Leigh, Fall River v. Riley. But a surety in 893 ; Craddock v. Turner, 6 Leigh, a bond to pay a judgment against his 116 ; Crawford v. Turk, 24 Gratt. 176 ; principal, rendered or to be rendered, Ohning v. Evansville, 66 Ind. 59 ; State will be bound by such judgment if V. Khoades, 6 Nev. 852. The old doc- obtained without fraud or collusion, trine is followed within limits in Stovall Way v. Lewis, 115 Mass. 26 ; Cutter V. Banks, 10 Wall. 583 ; Evans v. Com- v, Evans, lb. 27 ; Ex parte Young, mon wealth, 8 Watts, 398 ; Masser r. 17 Ch. D. 668. That is another thing ; Strickland, 17 Sei^g. k R. 854, Gib- it is merely fk decision of debtor and son, C. J. dissenting ; Hailey o. Boyd, creditor between those entitled to a 64 Ala. 899; Martin v. Tally, 72 Ala. decision. Sec Candee v. Lord, 2 Comst. 28, 29, 30 ; Grimmet v. Henderson, 66 269 ; ante, p. 48 ; post, pp. 150, 151. Ala. 521 ; Larkins v. Mason, 71 Ala. ^ Note 8, supra. 227 ; Fretwell v. McLenore, 52 Ala. * The sureties may show that the 124 ; Watts v, Gayle, 20 Ala. 817, court had no jurisdiction over the prin- 825 ; Wright v. Lang, 66 Ala. 889 ; cipal. Fall River v. Biley, 140 Maas. Grace v. Martin, 47 Ala. 185 ; Stoops 488. 9. Whistler, 1 Mo. App. 420. See also * It is otherwise by statute in Cali- Fall River v, Riley, 140 Mass. 488, fomia. Cunningham v. Ashley, 45 GaL 489 ; Tracy v. Goodwin, 5 Allen, 409. 485. BECT. III.] JUDGMENTS IN PERSONAM. 147 upon the lands of the heir or devisee.^ Such a judgment upon a debt of the decedent would not, e. g. estop the heir or devisee to set up the Statute of Limitations to the debt in defence of a bill in equity by the personal representative to subject the decedent's land to the payment of the demand.^ But it is held that judgment against the executor is prima facie evidence of the extent of the testator^s liability in a scire facias against the heir to subject the land in the hands of the heir.^ Of course no act or omission of an executor or administrator can bind those interested in the estate, unless they or the decedent or the law ^ authorized it^ 1 Garnett v, Macon, 6 Call, 808 ; tbe trouble or ezpenAe attendant on a Stone V. Wood, 16 111. 177 ; Dorr v, laborious investigation of the claim. It Stockdale, 19 Iowa, 269 ; Moss v. Mc- would seem unreasonable that the heir CuUougb, 5 Hill, 131 ; Alston v. Mun- who does not claim under the execu- ford, 1 Brock. 266 ; Scott v. Warct 64 tor should be estopped by a judgment Ala. 174 ; Starke v. Wilson, 65 Ala. against him. ... In this case the 576 ; Boykin v. Cook, 61 Ala. 472 ; creditor is bound to proceed against Lehman v. Bradley, 62 Ala. 81 ; Teague the executor, and to exhaust the per- V. Corbitt, 57 Ala. 529. In the case sonal estate before the lands become first cited Marshall, C. J. in the Circuit liable to his claim. The heir as devi- Court of the United States for Virginia, see may, indeed, in a Court of Chancery said : ' The defendants insist that tlie be united with the executor in the same decree against the personal represents- action ; but the decree against him tive of George Brooks is conclusive evi- would be dependent on the insufficiency dence against the devisee of the existence of the personal estate. Since, then, the of the debt. The cases cited by counsel ptt>ceeding against the executor is in in support of this proposition do not de- substance the foundation of the pro- cide the very point. Not one of them ceeding against the heir as devisee, tbe brings directly into question the conclu- argument for considering it as prima siveness of a judgment against the execn- facie evidence may be irresistible ; but I tor in a suit against the heir or devisee, cannot consider it as an estoppel. The They undoubtedly show that the execn- judgment not being against the person tor completely represents the testator as representing the land ought, I think, the legal owner of his personal property on the general principle which applies for the pajrment of his debts in the first to give records in evidence, to be re- instance, and is consequently the proper examinable when brought to bear upon person to contest the claims of his cred- the proprietor of the land.' That the itors. Yet there are strong reasons for judgment is »«> evidence against the heir, denying the conclusiveness of a judg- see the Alabama cases above cited, ment against an executor in an action * Starke v. Wilson, 65 Ala. 676. against the heir. He is not a party to • Sergeant v. Ewing, 86 Penn. St. the suit, cannot controvert the testi- 156. mony, adduce evidence in opposition to * As by authorizing an adminis- the claim, or appeal from the judgment, trator to sell lands for the payment of In case of a deficiency of assets, the ex- debts of the estate. Speer v, James, ecntor may feel no interest in defending 94 N. Car. 417. the suit, and may not choose to incur ^ As where an executor before quali- 148 ESTOPPEL BT RECORD. [CHAP. III. An administrator is of course in privity with his intestate in respect of the personalty ; ^ and an executor is in privity with the deceased to the extent to which by the terms of the will he succeeds to the position of his testator.^ So too the heir and the devisee are in privity with the ancestor or devisor.^ It might also be supposed that an administrator de bonis non would be in privity with his predecessor, the executor or admin- istrator; and so some of the authorities declared But this position seems* to be incorrect An executor of an executor is bound as a privy by that which binds his predecessor. The power of an executor being founded on the special confidence reposed in him by the deceased, he is allowed to transmit that power to another.^ But an administrator, being merely the ofl&cer of the ordinary, appointed by law, in whom the deceased cannot be said to have reposed any confidence, cannot transmit his office; and if he should die before closing his administration, the office would result back to the court for the appointment of a successor. So, when an executor dies intestate, his admin- istrator does not represent the testator; and it now devolves upon the court, as in the other case, to commit administration afresh with the will annexed.^ The administrator de bonis non does not derive his title in any way from his predecessor in the administration ; he does not succeed to the same property, but to the unadministered remainder. Hence there cannot in principle be any privity between them. It has even been held that judgment against an administrator in chief is no evidence against his successor of the justness of the demand ;^ but that fication failed to defend an application may be maintained by the administra- concerning bomeatead. Killen v. Mar- tor de bonis non. Dykes v. Woodboase, shall, 55 Ga. 340. See also Allen v. 3 Band. 287. There was some dispute Moi-gan, 61 Ga. 107. even on this point in the old cases. 1 Steele i;. Lineberger, 69 Penn. St. Ibid. 808. * Contrary, however, to the analo- ' Manigault v. Deas, 1 Bailey, Eq. gous case of agency. 283 ; Ladd v, Dnrkin, 54 Cal. 395. « Coleman v. McMurdo, 5 Rand. 51 ; 8 Boykin t?. Cook, 61 Ala. 472. Thomas v. Sterns, 33 Ala. 137 ; Hudg- * Ibid. ; Stacy v. Thrasher, 6 How. ens v. Cameron, 50 Ala. 379. See At- 44. The latter case, however, is but a tomey-General v. Hooker, 2 P. Wms. dictum, and even thus is only to the 338, 340 ; Rutland v. Rutland, ib. 210. effect that a scire facias or action upon ? Rogers o. Grannis, 20 Ala. 247 ; a judgment obtained by the predecessor Thomas v. Stems, 83 Ala. 137» 143. SECT. III.] JUDGMENTS IN PEBSONAM. 149 may be doubtecL The judgment may bind the successor without privity.^ It is well settled that there is no privity between executors or administrators appointed in different states or countries.^ A striking illustration of this rule is found in Pond v. Makepeace.^ The case in substance was this : The plaintiff, as administrator of Oliver Capron under the laws of Massachusetts, brought suit in that state against the defendauts on a note given to the intes- tate ; and the defence was that an administrator, appointed under the laws of Rhode Island, but not under those of Massa- chusetts, had brought suit in the latter state upon the same note, obtained judgment upon default, and had execution satis- fied. But the court held that the second suit was proper. Mr. Justice Dewey, speaking for the court, said that the proceedings in the suit by the Ehode Island administrator were wholly with- out authority, and might have been defeated by an appearance and the filing of a proper plea ; and the defendants, having n^lected to contest the right of the plaintiff in the former suit, could not now plead it in bar of the present action, notwith- standing the satisfaction. The rule of privity applies also as well to the judgment itself as a valuable daim as to tfie subject of the judgment and the issues decided by it Thus, one who buys a judgment succeeds to the rights of the owner and vendor as a privy.* It may be added that the rule in regard to privity does not apply to the ' case of persons who might possibly have claimed through a party to the former litigation, and whose interests were almost identical with those of such party, if in fact they do not claim through him.* A distinction has been made between cases where the only fact to be established is the right of a creditor against the judg- > Comp. pp. 160, 161, infra. » 2 Met 114. * McLean v. .Meek, 18 How. 16; * See Bank of California ». Shaber, Hatchett r. Berney, 65 Ala. 39. The 66 Cal. 322 ; and comp. Kidder v. Blais- point will be fully considered in the dell, 46 Maine, 461. chapter on Foreign Judgments in Per- * Spencer v, Williams, L. B. 2 P. & sonam. Of course an administrator is a D. 230. atmnger towards his intestate in regard to land. HaB v. Armor, 68 Ga. 449. 150 ESTOPPEL BT BEOOBD. [CHAP. III. • ment debtor himself, and cases where such a right may inciden- tally affect third persons, as when a person is affected by a chain of title under a judgment, sale, and conveyance. In this case it is held that third persons cannot impeach the judgment.^ There is still another important exception to the rule that judgments in personam bind only parties and privies. They are conclusive against third persons (in the absence of fraud upon them) of the relationship established between the parties, and of the extent of the relationship, supposing such third per- sons were not bound with or for the parties found liable.^ The relation of debtor and creditor, for instance, established by a judgment in favor of A against B, cannot be disputed by C except upon the ground that a fraud against creditors, of whom he is one, or against himself in some other relation, e. g. as surety, has been committed ;^ nor can the amount of the judg- ^ Baylor v, Dejamette, 13 Gratt. against the surety. Douglass v. How- 152, 172; Barney v. Patterson, 6 Har. land, 24 Wend. 85; Ex parte Toung, k J. 182, 208 ; Taylor v. Phelps, 1 Har. 17 Ch. D. 668, C. A. The record is m- & 6. 492. See Inman v. Mead, 97 Mass. denee, however, against the surety. 310 ; Secrist r. Green, 8 Wall. 744 ; Ante, p. 146 ; Drummond v, Prest- Gssler v. Shipman, 85 N. Y. 588. In man, 12 Wheat 516; King «. Nor- Barney v. Patterson, just cited,. Bu- man, 4 C. B. 884. The cases in which chanan, 0. J. said : ' The judgment is the jiadgment is held conclusive upon also objected to on the ground that it is the surety still peraiit the surety to res inter alios acta ; the appellant not show fraud or facts in defence per- being a party to the proceedings. But sonal to himself. Stovall v. Banks, the doctrine that judgments and de- 10 Wall. 583 ; Jones v. Bitter, 56 Ala. crees are only evidence in suits between 270 ; Watts v. Gayle, 20 Ala. 817, 825 ; liarties and privies, though generally Stoops v. Whistler, 1 Mo. App. 420. true, is not applicable to this case ; the With the rule of the text may be judgment of the Circuit Court being compared the effect of decrees in divorce introduced, not as binding per se upon causes and in other cases of the kind« the rights of the appellant, but only as where judgment has been rendered be- a document connected with the chain tween parties who had the exclusive right of the appellee's title, and is no more to try the cause. Ante, pp. 47, 48. obnoxious to objection than a deed from * Raymond v. Richmond, 78 N. Y. Brown, or uny other title papers equally 851 ; Pray v. Hegeman, 98 N. Y. 851, res inter alios acta, would be.* 862 ; Curtis v, Leavitt, 15 N. Y. 51 ; * See ante, p. 48. We have elsewhere Hall v. Stryker, 27 N. Y. 596 ; Candee seen that by the better authorities a v. T^rd, 2 Comst. 2/5 ; Brigham t*. judgment against a defendant cannot Fayerweather, 140 Mass. 411, 413 ; be deemed conclusive evidence to bind Way v. Lewis, 115 Mass. 26 : Cutter v. others liable with the defendant who Evans, ib. 27 ; Pickett v. Pipkin, 64 were in no way parties to the suit, as in Ala. 520 ; Swihart v. Spaner, 24 Ohio the case of a judgment against a prin- St. 482 ; Wingate «. Haywood, 40 N. H. cipal debtor, introduced in an action 437. SECT. III.] JUDGMENTS IN PERSONAM. 151 meut debt be contradicted.^ Third persons cannot object when those who have the exclusive right to settle a question have done so without fraud upon them;^ in the absence of fraud upon them, those (not being privies) who are not, or from want of interest might not be, parties, have no concern with the judgment, and cannot attack it even for supposed want of juris- diction,^ or for fraud upon othere.* In Candee v. Lord, just cited, the plaintiff having filed a bill against certain parties to set aside several alleged fraudulent judgments which stood in the way of a judgment recovered by him against one of the defendants in the bill, the other defendants, not having been parties to the judgment last mentioned, sought to impeach it. But they were not allowed to do so,* The following illustration will also explain the doctrine. A obtains a judgment against B, which becomes a lien upon B's real estate, a house and lot. C then sues and obtains judgment against B, and levies upon the house and lot. Finding the same insufficient to satisfy the two judgments, C cannot, in the ^ Candee v. Lord, 2 Comst 269 ; the latter without collusion, is conclu- Acker v, Leland, 109 N. Y. 5, 16 ; sive evidence of the relation of debtor Voorhees "o. Seymour, 26 Barb. 569, and creditor against others : first, be- 6S5 ; Sidensparker v. Sidensparker, 62 cause it is conclusive between the par- Maine, 481. ties to the record, who in the given ^ See Cincinnati v. Dicknieier, 81 case have the exclusive right to ea- Ohio St. 242. tablish it ; and secondly, because the ' Wilcher v. Robertson, 78 Va. 602, claims of other creditors upon the debt- non-resident or's property are through him, and sub- * Candee r. Lord, supra ; Brigham ject to all previous liens, preferences, or V. Fayerweather, 140 Mass. 411, 418. conveyances made by him in good faith. The judgment is not to be confused, in Any deed, judgment, or assurance of the its operation, with a judgment in rem debtor, so far at least as they conclude binding all the world ; that sort of him, must estop his creditor and aU judgment, unlike judgment in perso- others. Consequently neither a cred- nani, binds all men indefinitely. Nor iter nor a stranger can interfere in the is the relation of debtor and creditor, bona fide litigation of the debtor, or re- fixed by a judgment in personam for the try his cause for him, or question the plain tiflf, a 'status' in the sense of the effect of the judgment as a legal claim law of judgments in rem. Ante, p. 48. upon his estate. A creditor's right, in a • In delivering judgment Mr. Jus- word, to impeach the act of his debtor, tice Garrliner said : ' In creating debts, does not arise until the latter has vio- or establishing the relation of debtor lated the tacit condition annexed to this and creditor, the debtor is accountable debt, that he has done and will do noth- to no one, unless he acts mala fide. A ing to defraud his creditors.' See HUU judgment, therefore, obtained against v. Sherwood, 48 Cal. 386. 152 ESTOPPEL BY BEOORD. [CHAP. III. absence of collusion or other fraud, impeach A's judgment by denying the relationship of creditor and debtor established by it between A and B; nor can he dispute the amount of the indebtedness.^ The Duchess of Kingston's Case declares that a judgment is not conclusive (1) of mattere incidental thereto, or (2) of mat- ters to be inferred by (uncertain) argument from the judgment.^ The first part of the rule may be formally stated thus : A judg- ment is conclusive by way of estoppel of facts (necessary facts in a chain as well as the primary facts in issue'), and none other, without the existence and proof or admission of which it could not have been rendered.* The judgment determines all questions that ought to have been presented.^ It is often loosely said, indeed, and sometimes held, tiiat a judgment is conclusive of everything that might have been litigated in the action ;^ but ^ See also Chamberlain v. Carlisle, 26 49S ; Providence v. Adams, 11 R. 1. 190 ; K. H. 540, 553, and cases cited. Cook v. Burnley, 45 Tex. 97 ; Pray v. ^ See infra, p. 158, note ; Lawrence Hegeman, 98 N. Y. 851, 858 ; Woodgate V. Hunt, 10 Wend. 80 ; Forcey's Ap- *. Fleet, 44 N. Y. 1 ; People v. Johnson, peal, 106 Penn. St. 508, 615 ; Coffey v. 88 N. Y. 63 ; Hardy v. Mills, 35 Wis. United States, 111 U. S. 486, 445 ; 141 ; Shinn v. Young, 57 Cal. 526 ; Mc- Williams v. WillUms, 63 Wis. 58, 71 ; Calley v. Robinson, 70 Ala. 432 ; John- Ford v. Ford, 68 Ala. 141, 143. For ston v. Riddle, ib. 219; Hamner «. the second part of the rule in the Pounds, 67 Ala. 348 ; Davidson v. Ship- Duchess of Kingston's Case, see infra, man, 6 Ala. 27, 88 ; Strother v. Butler, pp. 159 et seq. 17 Ala. 733 ; Thomason v. Odum, 31 < School District v, Stocker, 42 ^. J. Ala. 108 ; Belshaw v. Moses, 49 Ala. 115 ; Tuska v, O'Brien, 68 N. Y. 446. 288 ; McDonald v. Mobile Ins. Co., But see King v. Chase, 15 N. H. 9 ; 65 Ala. 858 ; Bradley v. Brigga, 55 infra, p. 158, note. Ga. 854 ; Hunter v. Davis, 19 Ga. * Burlen v. Shannon, 99 Mass. 200 ; 413 ; Supples p. Cannon, 44 Conn. 424. 6. c. 8 Gray, 387, and 14 Gray, 433 ; * Burlen v. Shannon, 99 Mass. 200, Morse v. Elms, 181 Mass. 161 ; Leon- 202 ; Fuller v. F^astmau, 81 Maine, 284, ard r. Whitney, 109 Mass. 265, 268 ; 287 ; Kelley o. Donlin, 70 111. 378 ; West V, Piatt, 127 Mass. 367 ; Fuller Hemenway w. Wood, 53 Iowa, 21. r. Eastman, 81 Maine, 284, 287 ; Hill What this means will be seen a little V. Morse, 61 Maine, 541, 548 ; Mor^n further on. All material issues appoar- V, Burr, 58 N. H. 167 : Biggins v. Peo- ing of record are presumed to hnve Yn^n pie, 106 111. 270; Porter v. Wagner, 36 passed upon. Davis v. McCorkle, 14 Ohio St. 471 ; Crofton «. Cincinnati, - Bush, 746. But the presumption should 26 Ohio St. 571 : Marvin v. Dntcher, not be conclusive. 26 Minn. 891 ; Dixon v. Merritt, 21 • Wetumpka v. Wetumpka Wharf Minn. 196 ; Dunham v. Bower, 77 N. Y. Co., 63 Ala. 611, 634; Murrell v. Smith, 76 ; Steiubach v. Relief Ins. Co., ib. 51 Alau 301 ; Cobuni v. Goodall, 72 SECT. III.] JUDGMENTS IN PEBSONAM. 158 that is not generally held true,^ as will be seen,^ where the pres- ent suit is not upon or against ^ the very same cause of action settled in the former,^ except so far as it relates to some issue actually joined and tried or to facts necessarily implied.^ Every- . t Cal. 498, 606 ; Tniyhern v. Colbnrn, 66 471 ; Brady r. Pryor, 69 Ga. 691, Md. 277, 279 ; Withers v. Sims, 80 697. Va, 651, 660, 661 ; Kuegger v. In- « Port, p. 175. Indeed, the court of dianapolis R. Co., 103 111. 449 ; Ham- Alabama has held that judgment in ilton V. Quimby, 46 IlL 90 ; Paruell v, unlawful detainer is no bar to an action Hahn, 61 Cal. 131 ; Green v. Glynu, for damages by reason of the detainer 71 I nd. 336; Fischli v. Fischli, 1 Blackf. when such damages were not claimed 360 ; Griffin v. Wallace, 66 Ind. 410, in the first suit. Belshaw v. Moses, 49 420 ; Tredway r. McDonald, 61 Iowa, Ala. 283. But see Serrao v. Noel, infra. 663. See Mally v. Mally, 52 Iowa, (It is no bar to ejectment clearly. Riyer- 654; Harris v, Harris, 36 Barb. 88 ; side Co. v. Townshend, 120 111. 9.) A Thompson v. Myrick, 24 Minn. 4, 11 ; general judgment upon a general count Gardner o. Raisbeck, 28 N. J. £q. 71 ; no doubt carries prima facie all de- Smith V. Smith, 79 N. Y. 634 ; Peter- mands that might have been embraced sine V. Thomas, 28 Ohio St. 596 ; Swen- within it, upon the natural presumption son V. Cresop, ib. 668 ; Campbell r. that the parties probably litigated every- Goodall, 8 Bradw. 266 ; Adams v. thing they could litigate in the partic- Adams, 25 Minn. 72, 76 ; Aurora City ular action. Hungerford*s Appeal, 41 V. West, 7 Wall. 82. Conn. 322. But this presumption may 1 Cromwell v. Sac, 94 (J. S. 351 ; be overcome. Ibid. See Sawyer v. Daggett p. Daggett, 143 Mass. 516, Woodbury, 7 Gray, 499 ; Green v. 621 ; Foye v. Patch, 132 Mass. 105, Weaver, 63 Ga. 802. 110 ; Smith v. Brunswick, 80 Maine, * As when it is brought to recover 189, 193 ; Young v. Pritchard, 75 back money paid undep a judgment Maine, 513, 518 ; Hill v. Morse, 61 * This qualifying clause must be no- Maine, 541, 543 ; Riverside Co. v. ticed. See Cromwell v. Sac and the Townshend, 120 111. 9, 18 ; Chicago v. other cases cited in note 1, supra. Cameron, ib. 447, 459 ; Bennitt v. Stor * Cromwell v. Sac, 94 U. S. 351 ; Mining Co., 119 III. 9, 14 ; Equitable Bissell v. Spring Valley, 124 U. S. 225 ; Trust Co. V. Fisher, 106 IlL 189 ; Brady DaggeU v. Daggett, 143 Mass. 516, V. Pryor, 69 Ga. 691. It is not true, 521 ; Foyev. Patch, 132 Mass. 105, 110; even in the form in which it is some- Smith v. Brunswick, 80 Maine, 189, 193; times stated, that the judgment is con- Riverside Co. v, Townshend, 120 III. 9, elusive of all material facts which the 18 ; Campbell Printing Co. v. Walker, parties might by reasonable diligence 114 N. Y. 7 ; Fairchild v. Lynch, 99 have litigated (Henderson v. Hender- N. Y. 859 ; r. c. 1 Eastern Rep. 190 ; son, 3 Hare, 100, 115 ; Parkes «. Clift, Pray v. Hegeman, 98 N. Y. 351, 358 ; 9 Lea, 524), except so far as that Williams v. Clouse, 91 N. Car. 322, proposition relates to facts within the 327 (virtually qualifying Tuttle v. Har- actiial and necessary issues. Cromwell rill, 85 N. Car. 456, 462) ; Russell v, V. Sac, 94 U. S. 851, 857. The ques- Pbce, 94 U. S. 606. The estop))el ex- tion is not what the court might have tends to everything material ' within decided, but what it did decide. Smith the issues, which was expressly litigated V. Brunswick, 80 Bfaine, 189, 198; and determined, and also to those things Young V, Pritchard, 75 Maine, 513, which, although not expressly deter- 518 ; Porter «. Wagner, 86 Ohio St mined, are comprehended and involved 154 ESTOPPEL BY BECOBD. [CHAP. in. thing within the necessary issues is determined by the judgment,^ as e. g. in detinue for shares of stock, damages not only for the original unlawful detention but for the detention until the shares should be redelivered.^ But the parties are not bound to litigate unnecessary questions, even tlfough they might do so and settle the same forever,^'and though there may be a presumption that they did so of mattei's pertaining to the former trial \* and if not bound to litigate a matter, how can one be bound by a judgment in a cause in which one does not litigate the ^tatter ? The case of Hibshman v. Dulleban ^ illustrates the first part of the rule in the Duchess of Kingston's Case.* The plaintifT in that suit brought his action for a legacy; the defendants pleaded a release ; the plaintiff replied per fraudem ; and the defendants rejoined by way of estoppel that on the exhibition of the ad- ministration account by themselves, the plaintiff then excepted to the same, and alleged that the release pleaded was exhibited to the Orphans' Court as a full answer and a satisfactory bar to the exception, and that it was held a good and valid release. in the thing expressly stated and de- aathority to try a question sought to be cided, whether they were or were not put in issue properly in another court, actually litigated or considered.* Pray it is universally true that there is no V. Hegeman, 98 N. Y. 851, 358, An- estoppel. See e. g. Bosr^uett v. Crane, drews, J. ; Embury v. Conner, 8 Comst 51 Cal. 505. 522 ; Dunham v. Bower, 77 N. Y. 76. ^ Burlen v. Shannon, 99 Mass. 200 ; This applies to conclusions both of law Fuller v. Eastman, 81 Maine, 284, 287 ; and of fact Pray v. Hegeman. Blodgett r. Dow, ib. 197, 201 ; R**ed v. A judgment has of course no eflect Douglas, 74 Iowa, 244, 247. upon questions which could not be ' Serrao t7. Nool, 15 Q. B. D. 549, raised or determined upon the issues C. A. That proceeds upon the ground involved in the action. First National that the two items of damage constitute Bank v. Hastings, 22 Minn. 224 ; Dan- but one cause of action, a subject, how- iels V. Henderson, 49 Cal . 248 ; Hall v. ever, beset with difficnlties. See Bel- Levy, L. R. 10 C. P. 154. Thus, judg- shaw v. Moses, 49 Ala. 283, supra, which nient at law upon a municipal bond seems opposinl in piinciple to Serrao «• establishes the validity of that bond be- Noel. See also Brunsden v. Humphrey, twecn the parties in all courts ; but that 14 Q. B. D. 141, G. A., reversing 11 judgment decides nothing concerning Q. B. D. 712 ; Mitchell v. Dnvley Col- the question whether the lx)nd attaches liery Co., 14 Q. B. D. 12.'> ; k. c. 11 to a tnist provided by statute for the App. Cas. 127 ; post, pp. 160-173, for security of the bondholder. The bond a consideration of the Kubject. may Ije good and yet not have been so • Post, p. 174. See Tinyhem v, issucil AH to bring it within the terms of Colbum, 66 Md. 277, 282. the statute concerning the trust. We- ^ Pamell v. Hahn, 61 Cal. 131. tumpka V. Wetumpka Wharf Co., 63 » 4 Watts, 188. Ala. 611. Indeed, when a court has no * P. 152. SBCT.'in.] JUDGMENTS IN PERSONAM. 155 The question was finally raised by demurrer whether the validity of the release had passed in rem judicatam ; and the Supreme Court of Pennsylvania held that it had not^ In Garter v. James ^ an action of debt was brought on an in- dentui^ of mortgage, whereby the defendant covenanted to pay the plaintiff £600, with interest, on a certain day. The defend- ant pleaded by way of estoppel that the plaintiff had brought suit against him in a former action of debt on bond conditioned in the penal sum of £1,200 for the payment of £600 and inter* est> alleging it to be the same principal sum and interest as were secured to the plaintiff by a mortgage deed of even date with the bond. The present plea further stated that the defendant in the former action pleaded an usurious agreement made between the plaintiff and himself, and averred that the bond sued upon was given in pursuance of this agreement The plaintiff trav- ersed the allegation thus averred ; whereupon issue was joined and verdict found for the defendant The question in the pres- ent action was whether the plea was a good estoppel against the plaintiff to deny the alleged usury. The court was of opinion that it was not^ ^ Mr. Chief Justice Gibfion, in Bpeak- trial by jury.' See Forcey*B Appeal, log for the court, said : * The validity 106 Peun. St. 508, 515. of the release was drawn into contest ' 13 Mees. & W. 187. incidentally ; and the point, being thus * Alderson, B. said that the usurious incidentally decided against him, can agreement set out in the plea in the no more prejudice his title in another former action went on to state that it court than can the decision of a surro- was agreed that a bond should be given gate or register prejudice the title of to secure this usurious interest, and an unsuccessful claimant of administra- that in pursuance of that agreement the tion to the estate of a decedent. Again, bond in question was executed for the the point was not actually, or at least principal and Intercast named in it. This necessarily, decided. The plaintiff's ex- latter allegation alone being traversed, ceptious to the administration account the only issue the jury had to try was were also the exceptions of Henry Dul- whether the bond was given for the sum leban*8 trustees ; and whether tihe re- mentioned, £600. The jury found that lease were good or bad was a question it had been so given ; and inddenially whose decision could not supplant a it was taken for granted that, if the bond decision of them on the merits. It did was given as a security for that debt not supplant it ; and the gratuitous de- and the amount of Interest alleged in termination ot a point involving the the former plea, the interest so secured question of fraud, which had no effect was iisurious, according to the previous Uiere, ought to have no effect here, es- averments in the plea, which were not pedally to deprive the plaintiff of a put in issue by the plaintiff, but admit- 156 ESTOPPEL BT BECORD. * [CHAP. III. In a Pennsylvania case^ the plaintiff brought an action of trespass on the case in the nature of a writ of conspiracy^ alleg- ing that the defendant and J T, in pursuance of a fraudulent conspiracy, had secreted, assigned, and transferred to uuknown persons the goods and chattels of the defendant, thereby pi'e- venting the plaintiff from having execution thereof upon a judg- ment which he had obtained against the defendant^ It was pleaded in defence that after the conspiracy and acts charged the plaintiff had sued out an attachment execution against J T (above mentioned), and thei*ein had summoned the present de- fendant as garnishee ; that on the trial of the issues joined in the scire facias against the garnishee the same questions were raised and tried which were now raised ; and that the verdict and judgment were in favor of the garnishee. These allegations were then traversed by the plaintiff, but the defendant (the gar- nishee) had the verdict To the present action the general issue was also pleaded ; and upon that the jury found for the plaintiff. The court below now entered judgment for the plaintiff, and this judgment was affirmed by the Supreme Court. The ground was that the only question properly before the court on the garnish- ment was whether the defendant was debtor to or had in his hands by bailment any goods of J T. The issues in question were immaterial. There is an observation by Lord Chelmsford^ (founded ap- parently upon but hardly borne out by language of the court in ted by him for the purposes of that suit, ing on the bond, or disputing that any and for the purposes of that suit only, of the issues then determined by the ' If, therefore,* said he, ' the plaintiff jury were wrongfully decided ; but that were to be deemed estopped now when he is not estopped by any of the other the point in issue was not raised at aU facts which were taken in that case to in the former suit, he would be d^med be true merely for the purpose of decid- estopped by the finding of a matter ing the question at issue.' which he never disputed, and on which ^ Tanis v, Lewis, 42 Penn. St. 402. the jury gave no verdict, and the court * As to the supposes! cause of action no judgment (a) I take it that the in such cases, see 1 Bigelow, Fraud, 69. party is only estopped by the form of * Mackintosh v. Smith, 4 Macq. 918, the record in that action from recover- 924. (a) Parke, B. also says that the material facts alleged by one party which are indirectly admitted by taking a traverse on some other fact are only conclusive in case the traverse is found against the party making it. Boiteau v, Rutlin, 2 Ex. 665. And of course there is no estoppel concerning an immaterial allegatioDi Sweet V, Tattle, 14 N. Y. 465. SECT, m.] JUDGMENTS IN PERSONAM. 157 the Duchess of Kingston's Case^) to the effect that aMistinction exists between the judgments of courts of concurrent and courts of exclusive jurisdiction in respect of matters incidentally in- volved in a case, * The judgments/ he says, ' of courts of con- current jurisdiction are evidence only where the very same matter comes distinctly [i. e. directly] in issue between the same parties. The judgments of courts of exclusive jurisdiction are evidence whether the matter arises incidentally or is the matter directly in issue.* By 'incidentally' in this connection the Lord Chancellor appears to refer (not to immaterial issues, but) to external facts drawn into the case by the course of plead- ings diverging from direct denial of an allegation, as by con- fession and avoidance. The intimation appears not to have been acted upon.' 1 Everest & Strode, Estoppel, App. though the question should there arise B, p. 421. incidentally. The very next sentence ' The whole passage, in the language shows this conclusively. * But neither of the court in the Duchess of Kings- the judgment of a concurrent or exclu- ton's Case, is as follows : ' From the va- sive jurisdiction is evidence of any mat- riety of cases relative to judgments being ter which came collaterally in question, given in evidence in civil suits, these two though within their jurisdiction, nor of deductions seem to follow as generally any matter tTicidentally cognizable, nor true: first, that the judgment of a court of any matter to be inferred by argu- of concurrent jurisdiction, directly upon ment from the judgment.' Duchess the point, is as a plea a bar, or as evi- of Kingston's Case, Everest k Strode, dence conclusive, between the parties. Estoppel, 421. upon the same matter direcUy in qnes- The two passages are constantly tion in another court ; secondly, that quoted. Coffey v. United States, 111 the judgment of a court of exclusive U. S. 436, 445 ; Williams v. Williams, jurisdiction, directly upon the point, 68 Wis. 58, 71. As the text, however, is in like manner conclusive upon the states, no distinction appears to have same matter, between the same parties, become established between courts of coming indderUally in question in an- concurrent and of exclusive jurisdiction other court, for a different purpose.' in this respect ; the only question, and That is a different thing from saying it applies to both couiis alike, is whether that a judgment of a court of exclusive a finding upon external issues between jurisdiction is evidence ' whether the the parties, drawn into the case by the matter arises incidentally or is the mat- course of the mutual allegations, and ter directly in issue.' The facts pleaded necessary to the decision of it, is bind- in the second action were directly in iug in a cause arising directly upon issue — ' directly upon the point' — in such issues. That, as appears in this both kinds of courts, according to the text, is not entirely agreed, language of the Duchess of Kingston's It may be added that by the words Case; and then, as they were found 'matter to be inferred by argument in courts of exdutive jurisdiction, the from the judgment,' the court clearly finding is condoaive in a second action, meant matter which was aiguable, and 158 ESTOPPEL BY RECORD. [CHAP. III. This su^sts the question, What is to be considered the point in issue within the meaning of the law ? Is the rule this, that the judgment is conclusive upon every point which by the evi- dence in the action became necessary to the decision of the case ? Or is it this, that it is conclusive only of such matters as, being alleged by the plaintifif as the ground of his action, and controverted by the defendant, are necessary to the decision, in contrast with such matters as in themselves alone involved questions foreign to the cause of action, but which in the posi- tion > of the case became necessary to its decision ? There is much conflict of authority upon the subject. Without attempt- ing to follow the course of the many cases upon this point, we shall venture to make the suggestion that by the weight of au- thority the judgment is conclusive upon aU issues which have become necessary to the decision of the case, whatever their relation to the cause of action.^ not a certain and necessary inference controYerts by his pleadinfifs, which is from the judgment. Matter of the lat- in issue. The declaration and plead* ter kind clearly is within a judgment ings may show specifically what this is, Post, p. 164. or they may not. If they do not, the ^ See p. 152, 'necessary facts in a party may adduce other evidence to chain, as well as the primary facts in show what was in issue and thereby issue.' Chief Justice Parker of New make the pleadings as if they were spe- Hampshire has taken the opposite view. cial. But facts offered in evidence to After quoting the rule from the Duchess establish the matters in issue are not of Kingston's Case, in the case of King themselves in issue within the meaning V, Chase, 15 N. H. 9, which involved of the rule, although they may be con- this question, he says : ' Any fact at- troverted on the trial. Deeds which tempted to be established by evidence, are merely offered in evidence are not and controverted by the adverse party, in issue, even if their authenticity be may be said to be in issue in one sense, denied. When a deed is merely offered As, for instance, in an action of trespass as evidence to show a title, whether in if the defendant alleges and attempts to a real or personal action, there is no non prove that he was in another place than est factum involved in the matters put that where the- plaintiff's evidence would in issue by the plea of nul disseisin or show him to have been at a certain time, not guilty which makes the execntion it may be said that this controverted of that deed a matter in issue in the fact is a matter in issue between the case, notwithstanding the jury may be parties. This may be tried, and may required to pass upon the fact of its lie the only matter put in controversy execution. The yerdict and judgment by the evidence of the parties. But this do not establish that fact the one way is not the matter in issue within the or the other, so that the finding is evi- meaning of the rule. It is that matter deuce. The title is in issue. The deed uxK)n which the plaintiff proceeds by comes in controversy directly in one his action, and which the defendant sense ; that is, in the course taken by SECT. III.] JUDGMENTS IN PERSONAM. 159 The recent case of Dickinson v. Hayes ^ illustrates the second part of the rule in the Duchess of Kingston's Case.^ The action the evidence it is direct and essential, title which has been tried, and he is But in another sense it is incidental and concluded. . . . The question whetlier collateral. It is not a matter necessary, the mortgage was fraudulent came up of itself, to the finding of the issue. It only incidentally, by reason of his rely- niay be made so by the parties. This ing on that as his title ; but the mort- may be illustrated by the case before us. gage was not in issue. . . . Towns v. Laying out of considei-ation the ques- Ninis, 5 N. H. 263. There are cases tion whether this is a case between the which conflict to some extent with the same parties, the former action was for principle we have thus stated ; some of taking certain oats. The matter in them holding that, in order to make a issue was the title to the oats, and the record evidence to conclude any matter, conversion by the defendant in that it should appear from the record itself case. Upon that the jury passed, that the matter was in issue, and that They found that the plaintiflf had no evidence cannot be admitted that under title, or that the defendant did not con- guch a record any particular matter vert them, which may be involved in came in question : while others main- the first. It may be shown by parol tain that a former judgment may be evidence, if necessary, upon which given in evidence, accompanied with ground the verdict proceeded ; and it auch parol proof as is necessaiy to show appears in this case that they found the the grounds upon which it proceeded, plaintiff had no title. The conversion where such grounds, from the form of by the defendant in that case was not the issue, do not appear by the record denied if the plaintiff had title. That itself ; provided that the mattera alleged matter is settled. The verdict and to have been passed upon be such as judgment may be given in evidence in might legitimately have been given in another action for the oats between evidence under the issue joined, and those parties, and is conclusive ; but such that, when proved to have been that is the extent of what was in issue, given in evidence, it is manifest by the It appears that the title set up in that verdict and Judgment that they must case was by a mortgage. In finding have been directly and necessarily in that the plaintilT had no title, the jury question and passed upon by the jury, roust have been of opinion that the Jackson v. Wood, 3 Wend. 27 ; s. c. in mortgage was fraudulent. It is con- error, 8 Wend. 9. (a) While, on the tended that this was in issue, and the one hand, we do not, with the Supreme only matter in issue. But this was Court [of New York, in the case just only a controversy about a particular cited], deem it essential that -the record matter of evidence upon which the should of itself show that the matter plaintiff then relied to show title. If was in issue in order to make the deter- that was the only matter in issue, the mination of it conclusive, we are of plaintiff might bring another suit, for opinion, on the other, that the general those oats against the same defendant, principle laid down in the Court of and relying upon some other title than Errors is too broad in holding the jndg- that mortgage, try the title to the oats ment to be conclusive upon all mat- over again. Can he do so ? Clearly ters which might legitimately have been not ; and the reason is that it is his given in evidence under the issue joined, (a) See ante, p. 87. 1 81 Conn. 417. * Supra, p. 152. 160 ESTOPPEL BY RECORD. [CHAP. IH. was ejectment for certain land, to which the defendant claimed title under the will of a minor between seventeen and twenty- and such that, when proved to have searching examination and scrutiny been given in evidence, it is manifest that would be jjiven to a matter in by the verdict and judgment that they issue the decision of which would *de- must have been directly and necessarily termine the case. But a matter, though in question, and passed upon by the in itself alone foreign to the cause of jury ; as this must include all matters action, may be made the turning-point which came in question collaterally, by of the case ; it then absorba the entire the evidence offered, if they were of case ; the ground of action is lost in it such a nature as that it appears that for the time ; and the whole force cf the jury must or should have passed evidence, examination, analysis, and upon them.' argument is directed to the solution of This is strong reasoning, indeed, but the issue made by it. The main ques- it is not convincing. The decision is tion in the cause, if it had distinctly inconsistent with the doctrine of other arisen alone, could not have received a cases. Barrs V. Jackson, 1 Phill. (Eng.) more thorough investigation ; and the 582 ; Bouchier v, Taylor, 4 Bro. P. C. matter itself, thus in issue, would com- 685 ; Thomas o. Ketteriche, 1 Yes. 333 mand as careful a consideration as if it ( Lord Hardwicke) ; Railroad Co. v. had been the main and only question in Schulte, 103 U. S. 118, 143 ; Perkins controversy. In the case of the mort- is. Walker, 19 Vt 144; Faught «. gage in King v. Chase, supra, the va- Faught, 98 Ind. 470 ; Burlen v, Shan- lidity of the instrument would be as non, 99 Mass. 200 ; Morse v. Elms, 131 thoroughly considered in the action of Mass. 151 ; Attorney-Gen. v. Chicago trover as if a direct action had been R. Co., 112 111. 520, 539 ; Bissell v, brought between the parties to it to Kellogg, 60 Barb. 617 ; Wood v. Jack- cancel it. If this is true, we see no son, 8 Wend. 9. Though it has lately reason why the decision in the action been reaffirmed iu New Hampshire, of trover should not be conclusive upon Yaughan v. Morrison, 55 N. H. 580, the validity of the mortgage in all sub- 689. See also Ford o. Ford, 68 Ala. sequent actions between the parties. 141, 143 (quoting from the Duchess of But it should be a test of the con- Kingston's Cnse the language ante, p. clusiveness of the verdict upon such a 157, note) ; Williams v. Williams, 63 matter that it clearly appear that the Wis. 58, 71 (same quotation) ; Western whole case turned exclusively upon its M. Co. P. Virginia Coal Co., 10 W. Va. decision, so that it must have received 250; Leutz V. Wallace, 17 Penu. St. as thorough an investigation as in a suit 412. But an examination of the rule brought for the specific purpose of de- of res judicata will perhaps show the ciding the point ; for if it should appear infirmity. This rule is based on the that it might have been determined the ground that there has already be'^n a same way upon other grounds also, there fair and full trial of the matter, which could then be no certainty that tlie de- one or the other party is endeavoring cision of the point relied on as an estop- to litigate again ; and the reason why pel had received a full examination, there is no estoppel concerning matters such as an cstop^Ksl is presumed to rest not necessarily involved in the decision upon. And such a case would be pre- of the case is that, from the very fact sented upon a general verdict unex- that they were not of the essence of the plained, involving several diverse issues, action, they would not require, and in That we may not be misapprehended, all probability did not receive, that let us take for illustration an action in SECT, in.] JTTBGMENTS IN PEBSONAM. 161 one years of age. The will had included both personal and real estate, and the probate ran thus : ' An instrument purporting to be the last will of F H, late of M, in this district, deceased, was presented in court for probate, and having been duly proved was approved and ordered to be recorded.' It was contended that this decree was conclusive evidence of the competency of the testatrix to dispose of her real estate by will ; the law re- quiring a party to be twentyK)ne years of age to do so, but only requiring him to be of the age of seventeen years to make a will of personalty. But the court decided the point otherwise.^ ejectment, und suppose first, that tbe drawn into the issues and conclusively defendant relies solely upon a mortgage abjudicated (poet, p. 174), and the from the plaintiff letting him into pos- case under consideration is certainly session, and verdict for the plaintiff ; no stronger ; indeed, in principle it is secondly, that the defendant relies both the same thing. Again, suppose a will upon the mortgage and a deed from the to have been admitted to probate, would plaintiff's ancestor, and general verdict not the judgment be conclusive, between for the defendant In the case first put the heirs or devisees, of the testator's the validity of the mortgage must have mental capacity in ejectment on a deed received as exhaustive an examination by the testator, in connection with evi- as it was capable of ; and we can Ree deuce that his mental condition was the no good reason why the verdict should same all the time f Ck)mp. Dickinson not be conclusive in A suit in chanceTy v. Hayes, 81 Conn. 417 ; ante, p. 159 ; between the parties to have the moTt" Faughtv. Faught, 98 Ind. 470 (converse gage cancelled as a cloud upon the case) ; Brigham v. Fayerweather, 140 plaintiflTs title. But the second case Mass. 411, 415, 416. is entirely different. The decision may ^ ' The general question,' said Mr. have been put upon the ground of the Justice Sanford, in deliverinis: the judg- validity of either the deed or the mort- ment, "* before that court was whether gage ; and in a suit to cancel either or the instniment was the last will and both, this verdict unexplained could not testament of Frances E. Hubbard, and be an estoppel. The certainty upon as such entitled to probate. This ques- which an estoppel must rest would be tion necessarily involved an inquiry into wanting. her testamentary capacity. If she was If, however, it is once established be- seventeen years of age, and was of yond doubt by evidence of the plead- sound and disposing mind and memory, ings, or other sufficient evidence, that then she was legally competent to make the whole case turned upon the validity a will, nnd if the instrument in question either of the mortgage or of the deed ex- was executed, published, and attested clusively and independently, this should as the law required, it was a valid will, end the controversy forever. See Bis- and it was the duty of the Court of Pro- sell V. Kello^, 60 Barb. 617. Of course bate to approve, accept, and establish it if the verdict is special, the same con- accordingly. . . . The record demon- elusion follows. strates that the Court of Probate passed To conclude this note with two upon and found all facts necessary to or three special cases, an independent uphold its judgment and justify its ap- cauae of action, such as set-off, may be proval of the instrument as a will ; to 11 162 Estoppel by recobd. [chap, iil A similar qaestion arose in Dunckle v. Wiles.^ That was an action of ejectment for seven acres of land, in which the de- fendant gave in evidence the record of a judgment in favor of his grantor against the present plaintiff, in an action of trespass quare clausum fregit, the close being a large one, and embracing the one in question. The defendant to that action, now plaintiff, pleaded that the close in question was his own soil and freehold. Issue was joined and judgment given in favor of the grantor of the present defendant In the court below the record of this judgment was held a bar to the plaintiff's action ; but on appeal the Supreme Court reversed the ruling.* wit, the legal capacity and mental com- be detennined from the record. If a petency of the testatrix to make a wUl, close was to be regarded, he eaid, like a that she had made one in fact, and in horse or an ox, as entire and indivisi- due form of law, and that it was duly ble, it would follow that judgment on attested as her will. Without all these the question of title must be conclusive facts found the judgment had no legal as to all the land of which it was con- basis to stand upon. Standing on them stituted. Assuming this principle as . it could not be overthrown. . . . This correct, a plaintiff in trespass quare clan- record says in substance that the Court sum fregit, the close having been de- of Probate found that the testamentary scribed in the declaration and liberum paper in question was the will of Fran- tenementum pleaded, could only recover ces E. Hubbard, and conseqilkently that by proving a trespass coextensive ter- she had one degree at least of testamen* ritorially with the close as described, tary capacity ; but whether she was There would be no difficulty, however, in found to have had both or not the record doing this, since upon the principle aa- does not, with conclusive certainty, dis- snmed the close was one and indiviKi- close. The will must therefore operate ble, so that a trespass upon any part upon something, on one kind of prop- would necessarily be a trespass upon the erty or on both ; otherwise it would not whole. But such, he said!, was not the be a will. But to concede to it the effi- law. In trespass quare clausum fregit cacy of a will in its operation upon the the plaintiff might recover on proof of a personal property is all that is necessary trespass done to a part only of the close, to uphold the judgment of approval by although he had no right whatever to the court.' the residue ; and the plea of liberum ^ 5 Dell 10, 296. tenementum would be sustained by ^ Beardsley, C. J. speaking for the showing that the defendant had title couit, said that the verdict and judg- to the place where the alleged trespass ment would create an estoppel on the was committed, although such piece was question of title to the entire close in but part of the entire close to which the question if title to that extent was plea had reference. This principle was shown to have been in controversy on well settled. King ». Dunn, 21 Wend, the trial of the first suit. But no evi- 253 ; Bich v. Rich, 16 Wend. 668 ; dence out of the record had been pro- Stevens v. Whistler, 11 £ast, 51 ; Tap- duced to show whether the whole or a ley v. Wainwright, 5 Bam. & Ad. 895. part only of the close was in question He said that it must follow that as the before ; bo that the point would have to plaintiff in the action of trespass, of SECT, m.] JUDGMENTS IN PERSONAM. 168 An instructive case npon this branch of the subject was de- cided in 1850 by the Court of Appeals of New York.* It was an ejectment for a lot of land in New York City taken by the municipal corporation for widening a street. The corporation had applied to the Supreme Court, according to the statute, to appoint commissioners to examine and report upon the subject. They did so ; the Supreme Court confirmed the report ; the land was taken, and conveyed to parties under whom the defendants claimed. The plaintiffs desired to show that these proceedings were void on the ground that the legislature had assumed un- constitutional powers in passing the statute under which the property was taken ; but the defendants inter alia contended that the plaintiffs were estopped by the adjudication of the Su- preme Court confirming the report of the commissioners ; that court having had jurisdiction to adjudicate between the corpora- tion and the plaintiffs, and the question now before the court having then been put in issue and determined. It was held, however, that there was no estoppel.* which evideDce had been given in the to prore by extrinsio evidence that the present case, might have recovered with- title to the seven acres was directly in oat showing an injury coextensive with controversy in the former suit To the the whole close described in the dec- same effect he cited the langnage of laration, and as the defendant might Lord Tenterden, C. J. in Bassett v. have maintained his plea by proving Mitchell, 2 Bam. & Ad. 99. title to that pert of the close on which ^ Embury v. Conner, 8 Comst. 511. the supposed trespass had been com- ^ Mr. Justice Jewett, who delivered raitted, it was no necessary con8e<]uence the judgment of the court, first observc^l of the issue that the title to the entire that the Supreme Court, under the street close was in question. The record was law, exercised its powers as a court and therefore no bar. The judgment was not as commissioners appointed by the nndonbtedly conclusive of everything legislature ; and that its decisions in necessarily involved in the issue, or of such matters were judgments of the that which, falling within its limits, court, and subject to review on appeal; * had come directly in question. But the though in this particular it was a court title to the entire lot had not necessarily of limited jurisdiction. Striker v. Eel- been drawn in issue, and no extrinsic ler, 7 Hill, 9 ; s. c. in error, 2 Denio, evidence had been offered to show that 823 ; 2 Cow. & H. notes, 946. He then the title to the seven acres now in proceeded to say that to determine the question had been directly tried. The question involved by this point it be- injnry complained of in the former suit came necessary to see what matters were might have been done to another and referred to the Supreme Court in street distinct part of the close, to which part cases for adjudication, and what were alone the plea might have had reference, the issues between the parties ; ' be- In order to render the record in that cause,* to quote his language, 'ordi- case an estoppel in this it was i^ecessary narily the parties or their privies are 164 ESTOPPEL BT RECORD. [CHAP. III. A former judgment or verdict, on the other hand, is conclusive between the parties ^ to contested causes ^ (as has already been intimated) of all necessary inferences arising from it as well as of the matters actually in issue.^ Thus, in the case of Perkins V. Walker the plaintiff brought an action of slander. The defendant gave evidence tending to prove the truth of the only conclnded by a judgment of a have been, determined by the ooart so court upon such matters as are in issue as to estop the owners from making the between them in the cause or proceeding question in the action brought for the referred to it for determination.' , Under recoreiy of the premises, the statutes there was nothing submit- Further, see Eastman v. Symonds, ted to the court, he said, but the ap- 108 Mass. 567 ; Burlen v. Shannon, 99 pointment of the commissioners and the Mass. 200 ; Watts v, Wilson, 75 Ala. confirmation of their report. ' This in* 289 ; People v, Johnson, 88 N. Y. 68 ; Tolled only the question of the fitness Crum v. Boss,. 48 Iowa, 433. See also of the persons named as commissioners, Rogers v. Ratcliff, 3 Jones, 225, in the regularity of the proceedings of the which it was held that a verdict upon a corporation and the commissioners, and &ct put in issue by a special plea was the justness of the estimate and assess- not condusiyely determined when there meat made and reported by the latter, was, by the same verdict, a finding for The question whether the statute had the defendant upon the ^neral issue ; the legal effect to transfer to the corpo- 'the reason stated being that the finding ration the legal title of the owner of the for the defendant upon the general issue lands proposed to be taken was not, and fixed the fact that the plaintiff had no could not be, from the nature of the cause of action, and consequently it was case, determined by the court And unnecessary to investigate the matter of although the statute declared that the the special ple^i. See Burwell v, Canna- report, when confirmed by the court, day, 8 Jones, 165. should be final and conclusive upon aU ^ See Brigham v. Fayerweather. 140 persons, and that the title to the land Mass. 411, 418, in regard to judgments should be vested in the city government in rem. in fee simple, still, this was by force of ^ Williams v, Williams, 68 Wis. 58, the statute, and not as an adjudication where there was a default, upon the question by the Supreme • J^erkins v. Walker, 19 Vt. 144 ; Court. Tlie whole proceeding was but Pray v. Hegeman, 98 N. Y. 851, 358 ; a mode adopted by the state to exercise Faught v. Faught, 98 Ind. 470 (jndg- its right of eminent domain through a ment establishing the dispositions of power confided to the corporation of property under a will establishes the New York, or its officers. The con fir- testator's capacity to make the will) ; mation of the proceeding under the Shinn v. Young, 57 Cal. 525 ; Brady statute could in no sense be deemed an v. Huff, 75 Ala. 81 (judgment for plain- adjudication upon the effect of those tiff in forcible en tiy and detainer estab- proceedings. The order of confirmation lishes the plaintiff's previous possession ) ; merely concluded the parties in respect Norwood v, Eirby, 70 Ala, 897 (that to the regularity of the preliminary such judgment establishes the relation proceedings, and did not conclude either of landlord and tenant between the par- party as to their effect And whether ties) ; School District r. Stocker, 42 the statute was or was not constitutional N. J. 115 ; Tuska v. O'Brien, 68 N. Y. had not been, and conld not properly 446. . SECT, m.] JUDGMENTS IN PERSONAM. 165 words spoken. The plaintiff then produced the record of a judgment in his favor in an action of trover brought by the defendant 'against him to recover for the alleged taking and conversion of certain cloth ; and it was admitted that the cloth sued for in that action was the same cloth in reference to which the words charged as slanderous were spoken by the defendant. The court held that the judgment was conclusive against the defendant both in regard to the title to the cloth and in regard to the defence alleged in justification against this action. In an action of trespass for mesne profits ^ the plaintiff gave in evidence the record of a judgment against the defendant in an ejectment begun in 1843. The defendant showed an eject- ment against the vendor of the plaintiff, begun in 1841, and a judgment followed by a habere facias possessionem executed. The court below held the defence good ; but a contrary decision was given on an appeal Mr. Justice Kennedy said that it had ever been held in actions of trespass brought for the mesne profits of premises previously recovered of the defendant in ejectment, that the judgment in ejectment was conclusive evi- dence of the plaintiff's title to the possession and right to receive the mesne profits from the date of the demise in the declaration.^ And no defence could be alleged against the ac- tion for mesne profits which would have been, a bar to the action of ejectment In the further examination of the law concerning questions embraced within the scope of the judgment we come to the con- sideration of special and material demands of the plaintiff connected with his former action but not passed upon in the judgment, and of counter-demands of the defendant of which he did not in that action avail himself. We do not speak of the ^ Man V. Drezel, 2 Barr, 202. to mesne profits only from the date of '* KiUe i. Fige, 82 Penn. St. 102; the writ, a change wrought by the Com- Aslin V, Parkin, 2 Barr. 668 ; Vau roon Law Procednre Act. Harris v. Alen V. Rogers, 1 Johns. Cas. 281 ; Mnlkem, 1 Ex. D. 81. In some of the Benson v, Matsdorf, 2 Johns. 369 ; states the action of ejectment is con- Jackson V. Bandall, 11 Johns. 405 ; sidered as more than a mere possessory Emerson v. Thompson, 2 Pick. 473, action, and is conclusive of title. See 487. This is not tnie now in England. Payne v. Payne, 29 Vt 172. The judgment is concloaiye of the fight 166 ESTOPPEL BT RECORD. [CHAP. III. omission of evidcTice in support of demands (in such cases the judgment works a perfect estoppel against the use of such evi- dence afterwards, though newly discovered,^ in support of the same demand ^), but of demands themselves not in fact litigated. In answer to an action in the King's Bench to recover the proceeds of certain bags of clover^ the defendant pleaded an award ; to which the plaintiff replied that the subject-matter of the present suit was qot included in the reference ; and issue was joined on the replication. The plaintiff was allowed in the court below to prove that the matter of the present action had not been laid before the arbitrators ; upon which he obtained a verdict Motion was then made by the defendant to set aside the veixlict, and for a new trial, on the ground that the terms of reference, being * all matters in difference,' were conclusive on the parties in relation to all causes of action subsisting between them prior to the submission, of which the subject-matter now in question was one. But the motion was refused, the court assigning no ground for the decision. In the court below a case was alluded to precisely similar.^ In that case the defendant pleaded among other things that an action had been brought by the plaintiff for some other matter, in which all matters in difference had been referred ; that the arbitrator ordered several sums to be paid, and that the parties should give general re- leases ; and that the defendant did pay the money, and that the releases were given. The plaintiff replied that the present matters were not before the arbitrator, to which the defendant demurred. Lord Mansfield said that the only question was whether a submission of all matters in difference was a sub- mission of matters not in difference ; and judgment was given for the plaintiff. In Webster v. Lee ^ the question arose whether a promissory note not due must have passed under consideration in the case of a submission of 'all demands between the parties.' The 1 In re May, 28 Ch. D. 516. Special < Cromwell v. Sac, 94 U. S. 851, clrcumstanceR affecting at the time the 854. value of an article in litigation cannot ' Bavee v. Farmer, 4 T. R. 146. afford ground for impeaching the judg- ^ Golightly v, Jelliooe^ 4 T. R. 147, ment upon a great c)iange in its value, note. Boberts v. Rice, 71 Ala. 187. » 5 Mass. 884. SECT, m.] JUDGMENTS IN PBB80NAM, 167 court allowed the fact to be proved that the note was not laid before the arbitrator. Chief Justice Parsoua said that either party might prove what demands then existed. That a prom- issory note was a demand for certain purposes could not be denied. Yet it might well be questioned whether a submission of all demands to arbitrators included an acknowledged debt not in controversy, concerning which debt there was no difference or disputa If it was a fair construction of such a submission that it included all matters in difference, then either party might prove that a particular demand was not laid before the arbitra- tors, and so was not a matter in difference between the parties. Still, as either party might submit to the arbitrators all demands, the presumption was that all demands were in fact submitted ; but the presumption might be disproved. Without deciding, however, that an agreement to refer * all demands ' was subject to the same construction as a submission of ' all matters in dif- ference' the Chief Justice said that it was manifest that an agreement to refer might not be executed; and he said that evidence might be received to show the fact The effect of a judgment in case of a suit upon several distinct demands, some of which were dropped, may be seen in Seddon v. Tutop.^ The action was for goods sold and de- livered, to which there was a plea of former recovery. The plaintiff replied that he was now suing on different promises ; and from the evidence it appeared that the plaintiff in the former suit had declared on a promissory note, and for goods sold; but on executing a writ of inquiry he gave no evidence on the count for goods sold, taking his damages for the amount of the promissory note only. It was held that the judgment was not a bar to the present suit.^ However, it is held that ^ 6 T. R. 607. recoYered damages adapted to that de- * Lord Kenyon, C. J. said : ' There mand ; and that the other demand for cannot be two opinions respecting the the goods still remains unsatisfied. . . . justice of this case. It is admitted that The issue was whether the damages de- the plaintiff had two demands against manded in this action ha^e been already the defendant, the one on a promissory satisfied by the recovery in the tenner note, the other for goods sold ; that on action ; and most clearly they have not. executing the writ of inquiry in the The case of Markham v. Middleton, 2 former action evidence was only given Strange, 1259, is extremely different on the first demand ; that the plaintiff from the present. There the plaintiff 168 ESTOPPEL BY RECORD. [CHAP. UI. after judgment against an agent for the price of goods sold for his principal the agent cannot be sued again for wrongfully selling the same goods on credit.^ And where, to an action upon a note, the defendant pleaded a former judgment thereon, and the fact was that in the former action the plaintiff sued upon this note and another, but with* drew the note in question before judgment, it was held that the action was maintainable ; though in fact the court, acting as a jury in the former suit, expressed an opinion in favor of the plaintiff on both notes.' In a recent case it appeared that a bill had been filed against the holder of two mortgages to re- deem the first one of them, which he had foreclosed ; that he bad not set up the second mortgage in his answer ; that the bill was successful ; and that a decree had been rendered that the premises should be discharged of the mortgage named in the bill ; and it was now contended for the mortgagor that the moi't- gagee was estopped to avail himself of the second mortgage by his failure to assert it in the former action. But the court held the contrary .'^ A like principle is illustrated in White v, Moseley> That liad but one demand ; and though the the first, in which he failed. In this case jury gave inadequate damages for that it is clearly shown that the demand was demand on account of the plaintiflTs not not inquired into in the fonner action.* being prepared with proof of his whole i Caylus v. New York R. C^., 76 bill, he would have been barred by that N. Y. 609. verdict if it had stood. But in this case « Wood v, Corl, 4 Met. 203. So the there were two distinct demands not in maker of two notes, having a common the least blended together ; and though defence to each, but having failed to the plaintiffs might in the first action plead it in an action upon one of the have proved this demand, owing to in- notes, is not estopped thereby fipom advertence they did not ; and the re- pleading it when sued upon the other coveiy on the note in that action is no note. Hughes r. Alexander, 5 Ducr, bar to their demand in this, which is 488 ; Adams v. Adams, 25 Minn. 72 ; for goods. In truth, this is a question ante, p. 76. See TreadweU »• Stebbins, of great delicacy ; we must take care 6 Bosw. 538 ; Clark t;. Sammons, 12 not to tempt persons to try experiments Iowa, 868 ; Freeman ».* Bass, 34 Ga. in one action, and when they fail suffer 855 ; Maghee v, Collins, 27 Ind. 83 ; them to bring other actions for the same Hooker v. Hubbard, 102 Mass. 239. demand. The plaintiff who brings a Judgment for interest on a note is no second action ought not to leave it to bar to a subsequent action for the prin- Bice investigation to see whether the two cipal. Morgan v. Bowlands, L. R. 7 causes of action be the same ; he ought Q. B. 493. to show beyond all controversy that the > Gerrish v. Black, 122 Mass. 76. .second is a different cause of action from ^ 8 Pick. 856. SECT. III.] JUDGMENTS IN PERSONAM. 160 was an action of trespass quare clausum fregit for tearing down a mill-dam. The defendants pleaded a former recovery, to which the plaintiffs replied that that was in a different cause of actioa Issue was joined on the replication. It was admitted that the act complained of in the former suit was the passing over the mill lot by the defendants after they had returned from the opposite side of the river, where they had torn down the dam. They contended that the trespiass now sued for was one and the same, or at least a part of the same trespass, as that sued for before. The defence was overruled in the court below.; and that decision was sustained on appeal The ground taken was that the trespasses were distinct and independent The court said that if the defendants had gone upon the mill lot in order to complete their design of destroying the dam, there would have been but one trespass ; and the circumstance in such a case that they had passed over the land of a stranger (which was the fact) in going from one close to the other would have been immaterial. But the court said the object of the de- fendants seemed to have been to destroy the dam ; and this was effected before they recrossed the stream. It is clear from these and other cases that where a party has distinct causes of action against another, distinct in the sense that each would authorize relief by itself, he is not bound to unite them, though the causes of action exist at the same time and might be considered together.^ But where the supposed second cause of action is what may be termed a mere increment of the first, and not independent of it, the rule is different.^ The case of Florence v. Jenings will illustrate the last point The action was for a certain sum of money stipulated to have been given as interest, at the rate of £20 per month, in case of default in paying a certain bill of exchange. The facts weiq^ that the plaintiff discounted for the defendant a bill for £250, drawn by the latter on one I^Arcy, and accepted by him ; he 1 Stark V. Starr, 94 U. S. 477, 485, 14 Q. B. D. 141, reversing 11 Q. B. D. Field, J. See also Cromwell v. Sao, ib. 712 ; Mitchell v. Darley Colliery Co., 350 ; Davis v. Brown, ib. 428. 14 Q. B. D. 125 ; 6. o. 11 App. Cas. * Florence v. Jenings, 2 C. B. N. 8. 127 ; Hodsall v, Stallebrasse, 11 Ad. & 454. See also Serrao v. Noel, 15 Q. B. E. 805 ; BeUhaw v. Moses, 49 Ala. 288 ; D. 549, C. A.; Bnmsden p. Uiimphrey, ante, p. 154« 1 170 £STOPP£L BY BECOBD. [CHAP. III. and the defendant at the same time signing the following mem- orandum addressed to the plaintiff: ' Sir^ In consideration of your discounting the under-mentioned bill, we do jointly and severally undertake, if the same is not wholly paid at maturity, to pay, as interest thereon, £20 for each month any poitiun oi which shall have elapsed aft€r maturity of the said bill, and until the same is wholly paid and satisfied/ At the foot of this memorandum was written, ' £250. Jenings on D*Arcy at three months/ This biU not having been paid at maturity, the plain- tiff sued the defendant thereon, claiming interast at the rate of £20 per month, according to the above-stated agreement, but declaring only upon the bill; upon which he obtained judgment Afterwands he brought the present action for the sum of interest due, according to the memorandum. Issue was finally joined upon demurrer by the defendant ; the ground of the demurrer being that as the plaintiff had recovered damages for the non- payment of the bill, and had voluntarily forborne to take judg- ment for the stipulated interest, he could not bring a second action for such interest The court allowed the plaintiff in- terest to the date of the judgment, but denied it to him after that time. Chief Justice Cockbum, in pronouncing judgment, said that the interest due under the contract, though constituting a distinct debt, and properly declared for in a count upon the agreement, or for interest, was only a substitute for the interest ordinarily recoverable as damages upon a bill Therefore, when judgment had been recovered and the claim upon the bill had become res judicata (so that any further interest payable would be upon the judgment under the statute, and not upon the bill), the right to interest upon the agreement ceased. But concerning the inter- est which accrued prior to the judgment, the case, he said, was different It was clear that the plaintiff had not recovered the interest now claimed ; and looking at the declaration which determined the scope of the former action, the plaintiff could not have recovered such interest in that action for want of a count upon the agreement, or for interest^ What may be regarded mere 'increment' of and therefore ^ See Florence v. Drayson, 1 0. B. N. s. 5S4. SECT, ni.] JUIKSMENTS IN PERSONAM. 171 necessary to the cause of actioa is, however, a questioa of great difficulty, as the authorities sufficiently show. The subject of continuiug or recurring damages arising from a tort or a breach of contract presents one phase of the question. With regard to such cases the rule appears to be that all damages of the kind, of a then ascertainable nature at least, are a necessary part (or an * increment ' within the rule) of the recovery.* Whitney v. Clar- endon was trespass on the case to recover for loss of services sustained after Feb. 28, 1840, in consequence of injuries to the plaiDtiGTs son by the breaking down of a bridga The de- fence was that the plaintiff had obtained a judgment for similar damages sustained before the date named, by reason of the same injury ; and the court held the judgment a bar to the present action. The ground taken (by the majority) was that the injury inflicted by the fall of the bridge was one entire cause of action, though the damage might be continuous. It was for the plain- tiff to have shown his prospective damages in one action.^ The same rule was laid down in the later case of Burritt t;. Belfy,' where, however, it was said that the plaintiff should wait until all the damage was complete if he would recover for his entire loss. In like manner it has recently been laid down by the English Couit of Appeal that if judgment be obtained for the restitution alone of goods, when a claim might have been preferred for dam- ages for the wrongful detention down to the time of the judgment of restitution, no subsequent suit for such damages can be main- tained.^ In the case cited Lord Justice Bowen said that if the plaintiff's suit had been detinue at common law, the jury could have included damages not only for the original wrongful deten- 1 Whitney v. Clarendon, 18 Vt. 252 ; gaished : Hambleton v. Veere, 2 Sannd. Hodsoll V. Stallebrasse, 11 Ad. & E. 801 ; 169 ; Ward v. Rich, lYentr. 103 ; Bras- Darley Colliery Co. v. Mitchell, 11 App. field v. I^e, 1 Ld. Raym. 829 ; Robei-ts Caa. 127, overruling Lamb v. Walker, v. Read, 16 East, 215. The Chief Jus- 8 Q. B. D. 889 ; Brunsden v. Hum- tice thought that where prospective phrey, 14 Q. B. D. 141, 152 ; Serrao u. damages were uncertain they could be Noel, 15 Q. B. D. 649, 557. See Chi- recovered only to the commencement of cago R. Co. V, Schaffer, 128 111. 112, the action, and that another suit could 120. be brought if needed. * Comp. Chicago R. Co. v. Schaffer, * 47 Conn. 828. mpnu The following cases were distin- * Serrao v. Noel, 15 Q. B. D. 549. 172 ESTOPPEL BT RECORD. [CHAP. III. tion of the property, but also for the detentioii until it should be re-delivered ; damages might have been assessed once for alL There were not two causes of action.^ Another phase of the same question appears where the cause of action sued upon in the second case required the happening of a new event It is, e. g. well settled, at least in England, that every fresh subsidence of soil, in the case of the withdrawal of the lateral support of a man's land, gives rise to a fresh cause of action, though each subsidence is due to the same act^ The case of Leland v. Marsh ' may be noticed in the same connection. To trespass for false imprisonment the defendant pleaded a re- covery before a justice of the peace for the same wrong. The plaintiff replied assigning other trespasses, to which the defend- ant rejoined, not guilty ; and issue was taken thereon. In regard to the former recovery, that was for an imprisonment on Decem- ber 3, the writ being dated December 5 ; while the imprison- ment newly assigned was from the, 6th of the same month to the 10th of the next It was a continuing imprisonment from December 30 ; and the defendietnt insisted that the whole consti- tuted but one injury, for which the plaintiff had already recov- ered. But the defence was overruled. The court said that the imprisonment was the gist of the action, and that e^rery continu- ation of it was a new trespass. Of the same nature, it may be added, are repetitions of slanders and libels by the same persons who started them ; the whole may be included in one action, but that is not necessary.^ And this is perhaps true equally of or- dinary cases of recurring damages.^ 1 But Belshaw o. Moses, 49 Ala. 283, 6 Hill, 518 ; Fnizier v. HcCloskey, 60 appears opposed to this. Ante, p. 154, K. Y. 887 ; W^oods v. Pftngbum, 70 note. N. Y. 495 ; RockweU t. Brown, 86 « Darley CoHiery Co. v. Mitchell, N. Y. 207 ; Swift v. Dickerman, 81 11 App. Cas. 127, overruling Lamb Conn. 285. V, Walker, 8 Q. B. D. 889 ; Brunsden * See Chicago R. Go. v. Schafler, p. Humphrey, 14 Q. B. D. 141, 152. supra ; Byrne ». Minneapolis Ry. Co., See Bonomi v. Backhouse, El. B. & E. 88 Minn. 212 ; McConnel v. Kihbe, 29 646 ; s. c. 9 H. L. Cas. 508. Comp. also 111. 488 ; Smith v. Elliott, 9 Barr, 845 ; as to fresh results of negligence, Chicago Standish c. Parker, 2 Pick. 20 ; s. c. 8 R. Co. V. Schaflfer, 128 111. 112, 120. Pick. 288 ; Richardson v. Boston, 19 » 16 Mass. 889. How. 263 ; Conrtland r. Willis, 19 ^ SeeOdgers, Slander, 271, note, 817, Ohio, 842. All these except the first 820, 466 (Am. ed.) ; Root v. Lowndes, were cases of nuisance. SECT, m.] JUDGMENTS IN PERSONAM. ' 178 Still another phase of the subject was presented in Brunsden V. Humphrey, just cited. The plaintifif had obtained judgment against the defendant for damage to his cab by a collision caused by the negligence of the defendant's servant He now sued for damage done to his own person by reason of the same negligence, and was held entitled to recover.^ The case was decided upon the ground that there were two causes of action resulting from the one act' We have, then, at least three different phases of the question of the right of a second recovery for the same wrong, in view of other damages : first, where the whole loss was inflicted at once by the defendant, but only part of it was perceived at the time of the first suit ; secondly, where the loss complained of in the second action had not happened at the time of the first recovery ; and thirdly, where the wrong affected both per- son and property of the plaintiff. In regard to the first of these cases it may still be worthy of inquiry whether a second suit in the nature of a continuation of the first should not be allowed. The doctrine that there ought to be an end of litiga- tion when a judgment has been rendered has many qualifications founded in justice, but it is doubtful if any of them has a better claim to recognition than the case of a plaintiff who, having no ground to expect other damage, has acted as any prudent man might well have acted. If the courts cannot help such a case, the legislature may well do so ; though only for the protection of one who could not expect the later loss. The second case is still stronger, and the courts have seen their way clearly. The third case is the most difficult of all, perhaps ; and yet if a wrong is capable at all of producing several causes of action, as certainly is the case, it is not clear why the same causes may not be united in one person as well as divided between two or more. Besides, the nature of a right of action for injury to the plaintiff's property may be different in the particular case from that for the injury to his person. The defendant may have a ^ Lord Coleridge, C. J. dissenting. Master of the Rolls thought that the ' In regard to the right to sue for rule of res judicata was not to be corn- damages which had not developed at mended. But see the remarks of Bowen, the time of a former action the learned L. J. at p. 148, Brunsden v. Humphrey. 174 ESTOPPEL BT RECORD. [chap. III. claim upon the property, — he may be tenant in common, e. g. with the plaintiff; so that to establish the claim for damage to the plaintifiTs rights of property might be an entirely different thing from proving a trespass to his person.' While, however, no judgment can of itself bar an independent cause of action, whether of the plaintiff or of the defendant, it should be remarked that an independent cause of action may be drawn into the pleadings and issue by the act of the party possessed of it. Thus, the defendant to an action may plead a statutory set-off, and if this be adjudicated against him upon the merits of the claim (a fortiori if it be adjudicated in his favor), he will be barred thereafter from making it the subject of an action.^ Again, a plaintiff suing for slander or libel may« for the purpose of showing malice, offer in evidence repetitions of the same language, each of which repetitions would constitute a distinct cause of action ; but by so doing and obtaining judgment he bars himself of the right to sue for any such repetition, the verdict having probably included all in one.' While this is clear, there has been conflict of authority upon the question whether a cross-action can be maintained by an employer for the negligent or improper performance of services after an action by and judgment in favor of the person perform- ing, in which the defendant omitted to rely upon such ill per- formance ; and the same question arises in the case of the sale of goods which fail to correspond with the warranty, aad in other cases.^ Can the purchaser after suit by and judgment in favor of the vendor, in which the inferiority of the goods was not set up, maintain a cross-action for the breach of warranty ? The 1 Comp. the remarks of Pearson, J. in Houstoun v. Sligo, 29 Ch. D. 448, 456, 457. ' Eastmure v. Laws, 5 Biug. N. C. 444. > Root V, Lowndes, 6 Hill, 518 ; Frazier v, McCloskey, 60 N. Y. 337. The plaintiff is deemed, in snch a case, to make the defamation sned for and the repetition given in evidence one cause of action. But for this the repe- tition could be sned for after judgment in the other case. Odgers, Slander, 271, note, Am. ed. ; W.oods v. Pang- bum, 75 N. Y. 495 ; Swift v. Dicker- man, 31 Conn. 285. * As in the case of a right to have a lease rectified for mistake ; the mis- take need not be set up in bar of an ac- tion of trespass by the lessor, based on the lease. Houstoun v. Sligo, 29 Ch. D. 44& SECT. III.] JUDGMENTS IN PERSONAM. 175 question in the form first suggested arose in the case of Gates v. Preston.^ The plaintiff in that case sued a surgeon for negligent peiformance of professional service ; and the defendant relied upon a judgment in his own favor in an action for the value of his services, in which case the defendant, now plaintiff, had confessed judgment without trial The Court of Appeals held that the judgment was a bar. In such a case, it was said, the right of action (there being no denial thei'eof) was by implication admitted ; and when there was, in the answer of the defendant, an express and direct admission by him of the plaintiff's right to recover, and a consent to the entry of a judgment for a certain amount, it was an admission on the record of all the facts which the plaintiff would have been bound to prove on a denial of the cause of action alleged by Iiim in his complaint The court based the doctrine on decisions in White v. Merritt ^ and in Davis v. Tallcot^ In the first of these cases the plaintiff sued the defendants for damages for a violation of duty in the collection of a bill, and for false and fraudulent representations concerning their connection with it, whereby the plaintiff had been drawn into an unfortunate litigation. The defendants relied upon a judgment in their favor in an action by them to recover for an advance made in behalf of the very transaction in which the bill was given. In this action the plaintiff, then defendant, had been prevented from making his defence of vio- lation of duty by the false representations of the present defend- ants, and had allowed judgment to go against him, and had paid the same. There was a demurrer to this defence ; but the de- murrer was overruled and the defence held good.^ 1 41 N. T. 113. the defendants the amount of their * 7 N. Y. 852. advance with the interest and commis- ' 12 N. Y. 184. riona, which is utterly inconsistent * Kr. Jostice Welles, in delivering with the plaintifTs claim to recover it judgment, said : * By the judgment it hack, (a) No averment is to he ad- is established that it wan legal and mitted to contradict a judgment or to proper that the plaintiif should pay dispute fiiny legitimate inference dedu- (a) This, it would seem, was not the object of the present suit ; the purpose, as it would seem from the reporter's statement, was to recover damages for the violation of duty in occasioning the loss of the bill, and in getting the plaintiif into a bad suit. Indeed, the learned judge himself so states the nature of the prooeeding on the next page of his opinion. 176 ESTOPPEL BT BECORD, [CHAP. HI. The case of Davis v. Tallcot^ above cited,^ belongs to the second class mentioned at the beginning of the subject under consideration. It was an action for breach of contract to fur- nish machinery of a specified kind and quality. The defendants, as in the preceding case, relied upon a judgment in their favor in an action for the price of the machinery. In that action the present plaintiffs had at first pleaded the breach now sued for ; but before the trial they withdrew the defence and confessed judgment The court held the judgment a bar to the present action.^ dble therefrom. ... To gnfltain this what was done ; or rather the neceesity action to recover hack the advance for introducing evidence to sustain the would be to open the judgment and action was superseded by the admission inquire into its propriety and legality, of the then defendants in open court, That cannot be done collaterally.' This ** that they were indebted to the manu- doctiine has been reaffirmed in Dunham facturers for the causes of action men- V. Bower, 77 N. Y. 76 ; Blair ». Bart- tioned in their complaint." As the lett, 75 N. Y. 150 ; Bellinger v. Oraigue, cause of action and the indebtedness of 31 Barb. 534 ; Collins v. Bennett, 46 the defendants were by the complaint N. Y. 490. See Schwinger v. Ray- made dependent on a full performance mond, 88 N. Y. 193. In Dunham v. of the contract by the parties who in- Bower it was held that judgment in stituted the suit, the concession of the favor of a carrier for freight is a bar to defendants was equivalent to an ad- an action by the shipper for damages mission on the record to that effect ; on account of destruction of the goods and the report of the referee, followed in transit. In Collins v. Bennett it was by the judgment of the court, conae- decided that after recovery for keeping quently estops the parties to that suit a horse no action could be maintained from ever after questioning that fact in against the keeper for using^and con- any controversy arising upon the same verting the horse contrary to the agree- agreement.' ment for keeping him. Whether the The case of Doak v. Wiswell, 83 courts generally will be prepared to go Maine, 855, may also be noticed in this this length remains to be seen. connection. It appeared that the plain- * 12 N. Y. 184. tiff had some years before erected build- ^ Gardner, C. J. speaking for the ings on his wife's land. Upon her death court, observed : ' It is obvious that, by her heir at laW|recovered judgment for withdrawing their claim to damages, the land in a real action against the the then defendants did not waive their plaintiff, and entered into possession right to insist upon their defence. The under the judgment. The plaintiff plaintiffs notwithstanding must have cs- subsequently brought the present suit tablished their title to the price stipu- against the heir to recover the value of lated by proof that the machinery was the buildings. But the action was not made within the time and in the man- sustained. Tenney, J. said it was the ner called for by the agreement ; and plaintiff's duty in the former action the vendees were at liberty to meet and to defend and protect all his rights, combat these proofs by counter evidence Whether he had then set up his rights on their part. Now, this is precisely by betterment claim or otherwise did SECT, m.] JUDGMENTS IN PERSONAM. 177 In Massachusetts a contrary doctrine is held, at least in cases of judgment by default} In Bodurtba v. Phelon an action had been brought before a justice of the peace on a note given for the price of a horse, and the defendant pleaded a breach of warranty and obtained a reduction therefor from the amount of the plaintiff's demand. The plaintiff thereupon appealed to the Common Pleas, and the defendant was there defaulted. The latter now brought an action for the breach of warranty ; and the court held the former judgment no bar to the suit Indeed, it seems that the same rule would prevail in Massachusetts in cases not of default, provided the particular counter-right of ac- tion was not put in issue * It was said, however, in Bodurtha V. Phelon that if the judgment given by the justice of the peace had been allowed to stand, the case would have been otherwise ; which is very clear.® The court of New Hampshire has lately followed the above- cited decision in a like case, with the New York authorities before it^ The latter were distinguished on the ground that judgment had in them been given by confessixm after answer • which was an adjudication against the existence of a right of cross-action.^ not appear, and was of no importance, action, apon which the present plaintiff The judgment and possession were a bar might bring his own suit in his ovi-n to the present suit. way, and he was no more bound to 1 Bodurtha p. Phelon, IS Gray, 418. plead it than he would have been bound This is clear after what has been seen, to plead a set-off, frauds or a breach of ante, pp. 75 et seq. toarrmUy, Smith v. Palmer, 6 Cush. * Hunt V, Brown, 146 Mass. 253, an 513, 521 ; Cobb v. Curtias, 8 Johns, action by the makei of notes, upon an 470. See Burnett v. Smith, 4 Gray, agreement in relation to compromise of 50, 52 ; Davis v. Hedges, L. R. 6 Q. B. the payee's claim, after the payee had 687/ sued and recovered regardless of the * Burnett v. Smith, 4 Gray, 50. agreement ; the maker having pleaded a < Bascom v. Manning, 52 N. H. general denial and payment and then 182. having offered judgment against himself ^ Qusre if judgment by default after in full, and the offer being accepted, plea would not be in effect the same The judgment was held no bar to the thing ; and quaere if judgment by con- present action. Holmes, J. at p. 255 feasion toii?iotU plea would even in New (after saying that the agreement in re- York bar a cross-action ? Ante, pp. gard to compromise had left the notes 78-75. Indeed, it is doubtful whether in fuU force, and that the agreement judgment by confession is as effective was independent in character) : ' A as judgment by default. Ante, pp. 7S breach of it was a substantive cause of et seq. 12 178 ESTOPPEL BY BECOBD. [CHAP. IH. The doctrine of the New York cases has been denied in a case before the Superior Court of Cincinnati^ The plaintiff in that case sued the defendant, a physician and sui^geon, for ' carelessly, negligently, and improperly ' treating her arm ; to which action the defendant pleaded a judgment in his favor before a justice of the peace in an action against the present plaintiff to recover for his services in attending the plaintiff for her arm. To that action the plaintiff, then defendant, did not appear, though duly served with notice. A demurrer was entered to the plea; and the demurrer was sustained.^ And recent well-considered deci- sions of the courts of Wisconsin and of Indiana have also re- jected the doctrine of the New York cases.^ • ^ Sykes v. Bonner, Cin. Sup. Ct. plaintifr before the magUtrate would Bep. 464. See also, as to counter-claims have been bound to prove on a denial of in Ohio, under statutes, Witte v. Lock- the cause of action alleged there ; and wood, 89 Ohio St. 141. that the recovery by the plaintiff there s Mr. Justice Hagans, for the court, was dependent on a full performance of said : ' In looking into the justice's his duties in the Jtreatment of his pa- record it appears that the judgment tieut; and that the plaintiff here is against the plaintiff for the professional estopped from questioning that fact in services of the defendant was taken by any controversy on the same agreement default, and on the testimony of the for services. We do not see how the defendant himself only. It was cer- plaintiff in the case before the magis- tainly not necessary, in order to entitle trate was bound to prove that he was the plaintiff in that case to recover, guilty of no negligence in his treatment that he should prove that he was not of the arm before he could recover for guilty of any negligence in his profes- his services therein. It was enough to sional treatment. It was enough to prove the services and their value. We show simply that he performed the ser- are inclined to think with Judge Dan- vices at the defendant's request, and iels, who dissented in Gates v. Preston, their value, and the fact that the that the question of malpractice was not amount was due. There were no plead- necessarily in issue before the justice, ings and no issues. There is nothing . . . The merits of this case, under the in the record to show that the question circumstances, could not necessarily lie of negligence was involved. Now, it is involved without an issue on the ques- argued on the authority of Gates v. tion of negligence ; and so far as the Preston, 41 N. Y. 113, and of Bellinger record and the pleadings show, the evi- V. Craigue, 81 Barb. 634, Davis v. TaU- dence adduced before the justice was for cot, 12 N. Y. 164, White v. Merritt, 7 a different purpose. The effect of that N. Y. 862 (which is a case exactly like judgment cannot be extended or en- the present, except that there the de- larged by argument or implication to fendant, before the magistrate, con- matters, so far as the record shows, sented in writing to a judgment), that which were not actually heard and de- the judgment recovered for the services termined.' Ihmsen v. Ormsby, 82 Penn. before the magistrate is a direct admis- St. 198 ; Mallett «. Foxcroft, 1 Stoiy, Sion on the record by the plaintiff in 474 ; Spooner v. Davis, 7 Pick. 147. this case of aU the facts which the * Beseequie v. Byera, 52 Wia. 650 SECT, in.] JUDGMENTS IN PERSONAM. 179 The English courts maintain the same rule as that declared in the case just under consideration.^ In Mondel v. Steel the plaintiff sued for the breach of a contract in not building a ship according to specification. The defendant pleaded that he had previously brought an action for a balance due him by the con- tract, to which action the now plaintiff had pleaded the same breach of contract which was the subject of the present suit ; and that the jury found that there had been such a breach, and had deducted the value thereof from the amount which the then plaintiff would otherwise have been entitled to receive. The plea was held bad on demurrer on the ground that the verdict of the jury barred the plaintiff only in regard to such damages as he had then suffered, and could not bar a claim for further damages since suffered by reason of the breach of contract The legal effect of the verdict in the former action was that the present plaintiff had obtained satisfaction of the breach of con- tract now sued upon to the extent of the abatement allowed on the facts then provable, and no further. In Davis v. Hedges the plaintiff brought an action for the non-performance and improper performance of certain work; in bar of which the defendant relied upon a judgment in his own favor in an action for the price of the work. In that action, as in Sykes v, Bonner, supra, the defendant had not allied the improper performance. The court held the action maintainable on grounds stated in the note.^ Mr. Justice Lush, (suit against a physidan for damages on tice, where an action was brought for aceonnt of negligence, after judgment an agreed price of a specific chattel sold hy default in his fayor for senrices with a warranty, or of work which was against the plaintiff in the second suit); to be performed according to contract, Goble V. Dillon, S6 Ind. 327 (same sort to allow the plaintiff to recover the of case). Gomp. also Green Bay Canal stipulated sura, leaving the defendant Co. r. Hewitt, 62 Wis. 816, in regard to a cross-action for the breach of war- to eonnter^daims. ranty or contract ; in which action as ■^ Hondel «. Steel, 8 Mees. & W. well the difference between the price 86S ; Davis v. Hedges, L. B. 6 Q. B. contracted for and the real value of the 687 ; Hoostoun v» SUgo, 29 Ch. D. articles or of the work done as any 448. See Caird v. Moss, 88 Oh. D. 22; consequential damage might have been C. A. « recovered. . . . But after the case of * The court, by Hannen, J. began by Basten v. Butter, 7 East, 479, a differ- quoting the language of Parke, B. in ent practice, which had been partially jfondel V. Steel, just cited, which was adopted before in the case of King v. as follows : * Formerly it was the prac- Boston, 7 East, 481, n., began to pre* 180 ESTOPPEL BY RECORD. [CHAP. in. who concurred in all except the dictum (mentioned in the note) in regard to allowing a division of the action, drew the distinction vail, and being attended with mach satisfaction for the breach of contract," practical convenience has been since has reference to the facts of the case in generally followed ; and the defendant which the plaintiff did claim and did is now permitted to show that the chat- obtain an abatement. It is clear that tel, by reason of the non*compliance before any action is brought for the with the warranty in the case, and the price of an article sold with a warranty, work, in consequence of the non-per- or of work to be performed according to formance of the contract, in the other, contract, the person to whom the article were diminished in value. ... In all is sold, or for whom the work is done, these cases of goods sold and delivered may pay the fall price without prejudice with 1^ warranty, and work and labor, to his right to sue for the breach of war- as well as the case of goods agreed to ranty or contract, and to recover as be supplied according to a contract, the damages the difference between the real rule which has been found so conven- value of the chattels or work, and what lent is established ; and it is competent it would have been if the warranty or for the defendant in aU of those not to contract had not been broken. Is there set off, by a proceeding in the nature of any reason why he should be deprived a cross-action, the amount of damages of this right by the mere fact of his op- which he has sustained by breach of the ponent having commenced an aotion for contract, but simply to defend himself the price ? We think that there is none, by showing how much less the subject- and that there are some strong reasons matter of the action was worth by rea- why he should not It appears from son of the breach of contract ; and to the passages above cited from the judg- the extent that he obtains, or is capable ment in Mondel v. Steel that the pres- of obtaining, an abatement of price on eut practice of allowing the defence oi that account, he must be considered as the inferiority of the thing done to that having received satisfaction for the contracted for to be applied in reduction breach of contract, and is precluded of damages was introduced (on the same from recovering in another action to principle that the statutes of set-olt that extent, but no more.' Mr. Justice were passed) for the benefit of defend- Uannen then proceeds to say that the ants. It would gr^tly diminish the particular point decided in Mondel v. benefit, and in some cases altogether Steel was that one who has fairly ob- neutralize it, if the defendant was not tained an abatement of the price of allowed an option in the matter. The work done, in an action against him, by hypothesis is that the plainti^. for the reason of a breach of contract in its exe- price is in default. The conditions on cation, was not precluded from suing which he can bring his action are usn- for special damage resulting from the ally simple and immediate. The war- breach of contract. 'But,' continued ranted chattel has been delivered, or the learned justice, 'it leaves andecided the work contracted for has been done ; the question whether he was bound to and the right to bring an action for 'the obtain the abatement in the action in price, unless there is some stipulation to which he was a defendant, or might re- the contrary, arises. On the other hand, cover it in a cross-action. The expres- the extent to which the breach of war- slon of Parke, B. which was a good deal ranty or breach of contract may afford a relied on in the argument, that *' to the defence is usually uncertain; it may extent that he obtains, or is capable of take some time to ascertain to what obtaining, an abatement of price, ■ he amount the value of the article or work most be considered as having received is diminished by the plaintiff's default. 8ECT. III.] JUDGMENTS IN PEBSONAM. 181 clearly between the case before the court and the cases of Mar- riott V. Hampton,^ Hamlet v. Bichardson,^ and firown v. Mc- Einally,' — cases in which the defendants had been compelled to pay money under judgments which subsequent evidence, then inaccessible, showed should never have been recovered. 'In these cases/ said he, ' the sole ground of action was the pay- ment ; and what the plaintiffs sought by the action was to undo that payment and to place themselves in statu quo. In the present case the cause of action is the breach of contract ; that cause of action existed before and was independent of the payment.' * The case of Houstoun v. Sligo ^ further fortifies the position. In that case A was sued for trespass to lauds of the plaintiff B^ of which A was tenant by written lease. Under the lease as it stood B was entitled to recover, and was allowed by A to do so. But the lease was executed in mistake, certain facts agreed upon having been omitted, which would have prevented A from being treated as a trespasser. It was held that A was not bound to set up the mistake and the actual facts in answer to the action, though he might in fact and in law have done so, and that he might bring a suit to have the lease rectified after the judgment It 18 nnreeflonable therefore that he of repairing the work. And he cited should be able to (iz the time at which Mondel v. Steel as an express authority the money value of his default shall be for a separate action in such case. The ascertained. In many cases the extent court came to the conclusion also that to which the value of works may be di- the better rule was that the defendant minished by defect in their execution had the option to divide the cause of may be altogether incapable of discovery action and use it in diminution of daro- until some time after the day of pay- ages ; and that he would then be con- ment has arrived. Surely, the right to eluded to the extent to which he ob- redress for the diminution of value, tained, or was capable of obtaining, a when discovered, ought not to depend reduction ; or he might, as in the pres- on the accident whether the contracting ent case, claim no reduction at all; and party in the wrong had or had not is- afterwards sue for his entire cause, sued a writ for the price.' The learned ^ 7 T. R. 269. judge proceeds to mention another in- ' 9 Bing. 644. convenience that would result from a '2 £sp. 278. different rule from the one declared ; to * So in Caird v. Moss, 88 Ch. D. 22, wit, that it would tend to complicate C. A. it was explained that in Davis v. and increase litigation, from the fact Hedges, supra, the respective claims that defective performance of work gen- ' were distinct causes of action, enlly involves consequential and recur* * 29 Ch. D. 44S« ring damages by reason of the necessity 182 ESTOPPEL BT BECOBD. [CHAP. III. against him for trespass. A was entitled, it was declared, to have the question of mistake decided in a separate action.^ The case does not proceed upon any distinction between the rules of law and those of equity. It will be noticed that in Davis v. Hedges, above stated, Mr. Justice Lush, as quoted, says that the present cause of action was the breach of contract, and that that cause of action existed before and was independent of the payment in questioa Such a test appears to be decisive. If there is an independent cause of action to each party upon a breach of the contract by the other, neither in reason can be compelled to allege his defence of a breach in a suit by the other. Every cause of action car- ries with it the right to put it into judgment ; and that there is a separate and independent cause of action given to each party results necessarily from the fact that either party may sue the other for a breach. No suit can be maintained except upon a legal ground of action. Now, as one cause of action cannot in itself alone, when merged in judgment, carry another independ- ent cause of action with it,^ it is difficult to understand how a judgment for the plaintiif without plea can extinguish a counter- right of action by the defendant, however closely connected the two claims may b& Every one has the right to try his own case, and in his own way ; ' to plead fraud is a permission, not a requirement. The defendant in the first action may not then be able to prove the facts which he relies upon in the second suit ; and he is justified in reason in not raising an issue upon them.^ The contrary doctrine would often work manifest in- justice. A man who had by fraud obtained of another a note on demand could bring suit upon it at once, before the maker had had time to ascertain the facts, and the judgment would bar 'the just rights of the defendant ^ See Equitable Trost Oo. v. Fisher, it. Gregory «. Hobbs, 98 N. Oar. 1, 4, 106 lU. 189 ; Riverside Comp. v. Town- and cases cited. abend, 120 III. 9, 18. Comp. Caird v. * Hui^t v. Brown, 146 Mass. 253, Moss, 83 Ch. D. 22, C. A. ; Thomas v. 256, Holmes, J. qaoted snpra, p. 177. JosUn, 86 Minn. 1 ; Green Bay Canal * Qaoted with approval in Resseqiiie Co. V, Hewitt, 62 Wis. 816. v. Byers, 52 Wis. 650, 656, and in noMe ^ Statutes permitting the joinder of «. Dillon, 86 Ind. 827. See also Orppn related causes of action do not require Bay Canal Co. v. Hewitt, 62 Wis. 816. SECT. III.] JUDGMENTS IN P£B80NAM. 188 It has been in effect adjudged in a well-oonsidered case ^ that the vendor of goods is not bound to set off their value in an ^ Barker v. Cleveland, 19 Mich. 230. fendauts in the other, therefore their The case was an action by CloTeland judgment should not conclude them, if against Barker to recover the price of a the point in controversy were the same quantity of cranberries ; as a bar to in both cases. Kor is it important that which a verdict and judgment in favor in one case it was one stipulation of a of Barker against Cleveland were plead- contract which was sought to be en- ed in an action for breach of the con- forced, while the other suit involved a tract in respect to the purchase of the different stipulation ; the validity or cranberries. The court below found invalidity of the contract being ad> that there had been a valid contract of judged in the one case, it is settled for sale, and that the judgment interposed the other also. Betts v. Starr, 5 Conn, was not a bar. Chief Justice Cooley, in 660 ; Doty v. Brown, 4 N. Y. 71 ; Wil- delivering jadgment, began by saying liamsv. Fitzhugh, 44 Barb. 821; Walker that whatever fact became the subject v. Chase, 63 Maine, 268 ; Sawyer v. of judicial controversy in the suit for Woodbury, 7 Gray, 602 ; Birckhead v. the breach of warranty, and was relied Brown, 6 Sandf. 134 ; Castle r. Noyea, on by the plaintiffs therein in support 14 N. Y. 329. And it is immaterial of their action, was necessarily com pre- whether the point was actually litigated hended within the judgment rendered, in the first suit or not if its determina- and was thereby, by legal inl'erenoe, tion was necessarily included in the eonclusively settled between the parties judgment. Bellinger «. Craigue, 31 to the adjudication. Jennison v. W. Barb. 637. As we understand counsel Springfield, 13 Gray, 644. ' When a they claim that the question of the pay- party/ continued the learned judge, ment of the purchase price was neces- ' declares upon a contract of warranty aarily covered by the issue in their suit contained in a sale of chattels, he neces- upon the warranty ; that the court waA aarily affirms the validity of the con- required to pass upon it in order to de- tract. The warranty does not stand termine the amount of damages they independent of the sale, but is insepa- had sustained ; and that the sum of nibly connected with and forms a part f 100 actually found to have been paid of it. It is only one of the stipulations was taken into account in the judgment in the mun contract ; and it can neither rendered. If the plaintiffs in error are be alleged, or proved, or judicially correct in these positions, then unquea- fbund, except as a part of the sale. It tionably the judgment in the case be- ia evident* therefore, that the judgment fore us is erroneous. We have no doubt in Wayne county, in affirming the war- that had Barker and Bewick proceeded ranty, also affirmed, of necessity, the in that case upon the theory of the contract of sale ; and that the existence total rescission of the contract and re- and validity of that contract were there- covered a judgment, such judgment fore necessarily within the issue in that must have been held conclusive. When case and are now res a^jndicata. To a vendee puts an end to the contract of constitute the judgment in one case a sale, for the failure of the vendor to bar to another action it is not essential perform, and brings suit for the recov- that the object of the two suits should ery of damages, the object of the suit be the same, or that the parties should is to place the plaintiff, so far as the stand in the same relative position to law can accomplish that result, in stata each other. It would not be claimed quo. It is obvious that in such a case by the plaintiffs in error that because the inquiry is of the first importance, they were plaintiffs in one snit and de- how much has been paid on the contra^ct. 184 ESTOPPEL BY RECOBD. [CHAP. HI. action by the purchaser for damages by reason of the failure of the goods to correspond with the warranty; but the vendor, after judgment in such action in favor of the purchaser, may maintain an action on the contract for the price of the gooda The cases seem to be parallel There can be no better reason why the purchaser, the first suit being by the vendor, should be required to allege the inferiority of the goods than for requiring the vendor to rely upon the contract price in a suit by the pur- chaser. Indeed, the excuse for omitting the defence by the purchaser is stronger in many cases than any which the vendor can present ; for, as was suggested in the English case under consideration, it often happens that the purchaser is not able at the time of the vendor's suit to ascertain the real degree of since such payment constitutes ususlly yersies in one suit or by cross-action ; but the first and leading item of damages, whether one suit is brought or two the The purpose of such a suit is to recover damages are measured in the same way. back the sums which the plaintiff has If the vendee, instead of bringing a paid out upon and in consequence of cross-action, sets up the breach of war- a contract the benefit of which he has ranty by way of recoupment, the ven- lost through the non-peiformance by dor is entitled to recover the purchase the other party. Freeman v. Clute, price ; while the vendee will have 3 Barb. 424. The issue, therefore, ne- awarded to him, by way of reduction, cessarily covers and the trial adjusts such damages as he can show he has aU questions of payment of the pur- sustained by a breach of the promise of chase price ; and the vendor is for- warranty. Thornton v. Thompson, 4 ever precluded from maintaining a suit Oratt. 121. ... If, however, the vendee for the same or any unpaid portion thinks proper to bring an independent thereof. But we do not understand that suit upon the warranty, the damages of an inquiry concerning the amount of the I'espectlve parties are not measui^ damages sustained by a breach of war- by any different standard. If the vendee ranty necessarily involves the question recovers in that suit, he is conclusive- •f the payment of the purchase price, ly presumed to recover the full differ- If the contract is a valid one, it is im- ence between the value of the articles material to the plaintiff's action in such delivered and their value as it would a case whether he bought for cash or have been had they complied with the upon a credit not yet expired. The ob- warranty. If the only issue in the case ject of the suit is foreign to the ques- is upon the waiTanty, the court will not tion of payment. He sues to recover concern itself with the inquiry how the difference between the actual value much of the purchase price has been of the articles received on the contract paid. Perrine v. Serrell, 1 Vroom, 458. and what their value would have been And the vendee, having recovered his had they answered the wRrranty ; and damages in that suit, is supposed to be unless the vendor defends on the ground fully compensated for any deficiency in of non-payment of the purchase price the articles bought, and to be legally the court does not concern itself with bound afterward to pay any balance of that question. The parties in such a the purchase pri^e without deduction or case are at liberty to settle their contro- controversy.' BECT. III.] JUDGMENTS IN PERSONAM. 185 inferiority of the goods. The argument appears conclusive against the soundness of the New York cases, unless the dis- tinction taken in New Hampshire between a judgment by con- fession^ and one by default or on trial without alleging the defence be thought well of. In the case of White v. Merritt the court confused the case of an action to recover money paid under a judgment, and that of an action for breach of contract and fraudulent representations. The distinction has already been pointed out;^ the former is a direct attempt to impeach a judgment collaterally, while the latter involves a suit on a cause of action separate from and independent of the one merged in the judgment. There is another view of this question which leads to the same conclusion. A judgment is conclusive only in respect of matters necessarily inconsistent with it. Now, the fact of the ill performance of a contract is not inconsistent with a judgment upon the contract by the other party. Such facts usually go only to the reduction of damages ; and the other party has thus a right of action.' If the counter-right should go further and entitle the defendant himself to damages, it might be argued with plausibility that this would be inconsistent with any right of action in the plaintiff; but that cannot appear until the de- fendant's proof is all in, and the verdict of the jury obtained. And hence, as it cannot be known in advance whether the right of action of the plaintiff in the first suit will be overbalanced, he cannot say that the second suit is necessarily inconsistent with the first judgment But the argument that to give damages in favor of the counter- right over the main demand would be inconsistent with any right of action upon the latter is aside from the case ; for judgment on default is not equivalent either in principle or on authority to judgment upon an issue fought out Judgment on default is good for the primary purpose of a judgment for a plaintiff ; it gives him the right to have the sum adjudged collected ; but it has 1 See ante, p. 73. for the breach of the contract, and not ' Ante, p. 181 ; poet, p. 186. to recover back money paid on the judg- ' 'The action was on the [counter] xnent, though that might affect the contract, and if the contract was proved amount of the damages.* Fletcher, J. and the breach of it, the recovery was in Smith r. Palmer, 6 Cush. 618, 521. 186 ESTOPPEL BY RECORD. [CHAP. IIL not the full e£fect of a res judicata, becaiaae in reality it has been ex parte. There is the best authority for saying that judgment by default does not conclude defences in confession and avoid- ance in a different action.^ And if the view here presented, that the cross-demand is an independent cause of action, is coiTect^ it cannot matter that the former judgment was rendered upon an issue contested, if that issue did not embrace the cross-demand. This, it is apprehended, is true of all cases of property cross- rights ; ^ that is, all cases of the kind where each party to a transaction has a clear right of action before suit by the otber.' Judgments in such cases cannot be necessarily inconsistent with each other. Even in the case of tm action upon a contract to which fraud might have been set up, a judgment upon the con- tract is not necessarily inconsistent with the existence of fraud.^ Fraud does not make a contract void, but only voidable ;^ and a person may elect to treat the contract as binding and sue for the fraud.^ This, clearly, is not inconsistent with holding that fraud may not be a ground of impeaching judgments in col- lateral proceedings ; since in the first case supposed there is no necessary impeachment of the judgment^ The plea of fraud in respect of a judgment will be considered hereafter.^ But if the fraud or unskilful performance be pleaded to the first suit, it cannot afterwards be made ground of an action by the defend- 1 Howlett V. Tarte, 10 C. B. n. s. quoted ante, p. 177. It is held that if sis ; CromweU v. Sac, 94 (J. S. 351, fraud upon a seller of property was un- 8fi6 ; Hanhain v, Sherman, 114 Mass, known to him at the time of obtaining 19 ; ante, p. 75. And see especially judgment for the price, he may, no^ ante, p. 73, of judgment confessed. withstanding the judjonent, rescind the ^ In some states cross-decrees of di- contract and demand return of the prop- Yorce can be had ; divorce granted to erty. Kraus v. Thompson, 80 Minn* husband or wife lieing no bar to divorce 64, judgment by dr fault, to be granted to the other. Stilphen • White v. Garden, 10 Com. B. 927. ▼. Houdlette, 60 Maine, 447 ; Stilphen * Burnett v. Smith, supra. 9. Stilphen, 58 Maine, 508. ^ See Jackson v. Somerville, 13 Penn. • See O'Connor v, Vamey, 10 Gray, St. 359. But see Homer v. Fish, 1 Pick. 281, per Shaw, C. J. It is of course 435. In Melick v. First National admitted in New York that where the Bank, 52 Iowa, 94, it wft.<« held that counter-demand amounts to an inde- confession of judgment on a promi&<)ory pendent cause of action, it is not haired note obtained by fraud of which the hy the judgment first rendered. Brown confessing party was ignorant may be «. Gallaudet, 80 N. Y. 413. set aside by him. * Burnett v. Smith, 4 Gray, 50, 52 ; * Under Collateral Impeachment of Hunt 17. Brown, 146 Mass. 253, 255, Judgments, post 88CT.ni.] JUDGMENTS IN PERSONAM. 187 ant, though judgment in the former trial had gone in his favor and he now claims greater damages than the sum for which he had himself been sued.^ He must abide by his election. These remariu have reference merely to the general proposi- tion that the purchaser or employer is not estopped to sue for the breach of contract by his failure to allege the inferiority of the goods or the negligent performance ; and the view here taken is based solely upon the ground of the absence of any verdict or decision upon the matter of the counter-demand,^ but regardless of the question whether the judgment was rendered on default or after appearance and defence. There may be more doubt in regard to the soundness of the further doctrine of Davis v. Hedges,* that such party may also divide his action, using first the part ascertainable at the time of the plaintiff's action and subsequently suing for any further damages since ascertained. Only one suit can be maintained on one cause of action. One judgment merges all demands passed upon; and it might be argued that the defendant's cross-demand for the plaintiff's breach of contract is single, and not continuous or recurring,^ and that the HI performance of the work or the inferiority of the goods was but one fact and ground of action, however and whenever it may have manifested itself.^ A careful distinction, however, must be noticed between a case where the plaintiff, suing upon several distinct demands, omits to introduce evidence in support of some of them, and thus saves the right of suing again upon such demands, and the case where he fails, intentionally or not, to produce sufficient evidence to sustain his action. In the latter case he wUl of course be barred,* 1 O'Connor «. Varney, 10 Gray, 231 ; other party to sne for the contnujt Barnett v. Smith, 4 Gray, 50 ; Sargent price. Butler «. Suffolk Glass Co., V. Fitzpatrick, 4 Gray, 611 ; Sawyer ». 126 Mass. 612. Woodbury, 7 Gray, 4M ; Howell v. • Clark ». Wiles, 64 Mich. 828 ; Goodrich, 69 111. 666. Miller v. Manice, 6 Hill, 114, 121 ; * See Haynes «. Oidway, 68 N. H. Cromwell o. Sao, 94 U. S. 361, 862 ; 1S7. Shoemaker f. Atkins, 6 Baxter, 818. > Ante, p. 181, note. See Stark v, Starr, 94 U. S. 477, 486. * Ante, pp. 172-174. In Miller v. BCanice Chancellor Wal- * Judgment for the plaintiff in a rait worth said that the question whether a for non-performance of a contract does verdict and judgment for the defendant not amount to an affirmance of the con- in a former action was a har to a second tract in such a way aa to permit the suit for the same cause did not depend 188 ESTOPPEL BT BECOBD. [CHAP. III. just as he would be barred by failing to produce evidence in support of any single demand.^ With reference to particular issues all relevant necessary facts are conclusively presumed to have been under consideration.^ It matters not that the case may not have been fvdly entered into, if it was not withdrawn.^ But this statement itself must be taken with a distinction. One \^ho brings an action upon one demand or several connected demands and attempts to support his whole case will assuredly be barred by the judgment from suing again for the same de- mand or any one or all of the connected demands ; and he will find no escape from the estoppel by offering to show that other evidence existed, now for the first time at hand, which would have produced a different result.^ But facts not produced or in issue in the first action, whether then at hand or not, may be used in another suit upon a different demand, though that de- mand be of the same nature and grow out of the same trans- action as the one first sued upon.^ A man may acquire different rights at the same time and by the same transaction, and, if his upon the fact that the proof in the for- without withdrawing any part of his mer suit was sufficient to sustain that claim, and he fails as to the whole or action. ' For/ he continued, ' when the a part, for want of sufficient proof, the same matter was in issue and submitted defendant may insist upon the first to the jury in the former suit, without judgment as a bar if the same evidence sufficient proof, the decision of the jury which is sufficient to sustain the second upon the matter in issue and thus sub- suit would have authorized a recovery mitted to them, followed by the judg- in the first action in case it had been ment of the court upon their verdict, produced upon the trial thereof.' Staf- will be a bar to another action for the ford v, Clark, 1 Car. & P. 403 ; 8. c. same cause or matter when the same 9 J. B. Moore, 724 ; Ehle v. Bingham, evidence which is necessary to sustain 7 Barb. 494 ; Jones v, Weathersbee, 4 the second suit, if it had been given in Strob. 50. the former action, would have author- * See Lockyer v. Ferryman, 2 App. ized a recovery therein. Where a gen- Cas. 619. eral declaration embraces several causes ' See e. g. Lockyer o. Ferryman, of action, the plaintiff in a second suit supra ; Newington v. Levy, L. R. 5 may show that he offered no evidence G. P. 607 ; Hall v. Ijcvy, L. R. 10 as to one or more of those causes of C. P. 154 ; Cromwell v. Sac, supra, action, and that the cause went to the * Dundas «. Waddell, 5 App. Gas. jury upon a different part of his claim 249. from that for which the second suit is * Cromwell v. Sac, 94 U. S. 851. brought. And then the judgment in See In re May, 28 Ch. D. 516, in re- the first action will be no bar to the gard to newly discovered evidence, second. But where he attempts to give • Ibid. ; Davis v. Brown, 94 U. S. evidence as to all the causes of action, 423. See ante, pp. 152-154 ; Lumber and submits the question to the jury Co. v, Buchtel, 101 U. S. 6SS. SECT, m.] JUDGMENTS IN PERSONAM. 189 title is disputed to one of them in one suit, not make use of facts which would establish his title, without being precluded thereby from availing' himself of such facts in a subsequent suit of the same sort touching his title to another of those things ; though it would be otherwise if the facts were put in issue in the first suit.^ Thus, in the recent case of Cromwell v. Sac, an action by an innocent holder for value of municipal bonds (irregularly issued in fact) against the maker, it was held that the fact that the plaintiff had omitted in" a former action upon other bonds of the defendant, issued at the same time and under the same circum- stances, to produce evidence that he was an innocent holder for value, whereby judgment went against him, would not preclude him in the present action from bringing forward such evidence in relation to the bonds now sued upon. The finding in the former case was merely to the effect that the plaintiff was not an innocent holder for value •of the bonds then in litigation. That finding could not be extended beyond its necessary meaning ; * and this, it is apprehended, is universally true.* And on the other hand, for the same reason, the fact that the plaintiff was found to be a holder for value of the bonds or coupons thereof in the first suit will not establish the fact that he is such a holder in the second.^ It is laid down that a second action cannot be maintained upon evidence once offered and rejected as inadmissible in the trial of a like action between the parties where the plaintiff has allowed the case to go to a general judgment against him, though the evidence would otherwise be admissible in the second action. In Smith v. Whiting * the plaintiff having brought an action for * McNuttv. Trogden, 29 W. Vh. 469. been tried. Foye v. Patch, 182 Mass. The rights being different, there may 105, 110; Cromwell v. Sac, supra. be different causes of action touching ^ See Bissell r. Spring Valley, 124 them ; and ' when the second cause of U. S. 225 ; and fuither, as to Crom- action between the same parties is upon well v. Sac, see Wilson v. Deen, 121 a different cause of action from the first, IT. S. 525. then the judgment in the former action • ' Stewart v, Lansitig, 104 U. S. 505^ is conclusiye only upon those issues 610. which were actually tried and deter- ^ Stewart v. Tensing, snpra. nuned,' not of all those which mi^^t hare * 11 Mass. 445. 190 ESTOPPEL B7 BECOBD. [CHAP. HI. mouey had and received, the defendant pleaded a verdict in favor of the plaiutifT in a former action between the same parties for the same demand. The plaintiff repUed that the count upon which he recovered before was for money laid out and expended, and did not embrace the demand now sued upon ; that upon that count he endeavored to introduce in evidence a receipt for the money now claimed, but that the evidence was rejected as inadmissible upon the count for money laid out and expended without proof that the sum was paid at the defendant's request ; which fact was not in evidence. The replication was demurred to, and the demurrer was sustained. The Chief Justice said that it was apparent from the pleadings that this very demand had been tried and determined ; and that though the court may have erred in rejecting the evidence offered, this was no way to remedy the case. Exceptions might have been filed, or a new trial had, or a continuance ; but as this was not done, and as the plaintiff had permitted a general verdict to go against him without striking out the count to which the evidence was appli- cable, the court must presume that the very matter now in dis- pute had been tried. It was tnie that the cases of Bavee v. Farmer ^ and Golightly v. Jellicoe * had established the principle that where a demand had not been submitted, it should not be barred by an award or report on a rule or submission of all de- mands. But in those cases no evidence was offered to support the demand made the subject of the second suit ; while in the present case the very evidence now relied upon was offered, and an adjudication had upon it. The plaintiff should have stricken out the count in question. On the other hand, where evidence of a set-off is excluded in a suit at law and judgment given for the plaintiff, this is not an adjudication of the matter of set-off so as to prevent the party from enforcing it in chancery, though it would be otherwise if the law court had actually passed upon the merits of the set-off.^ Nor does it affect the case that the existence of certain mate- rial evidence was unknown at the time of the former trial ; this 1 4 T. R. 146. « Ibid, in note. * Hobbs V. Daff, 28 Cal. 698. Comp. ante, p. 69. SECT, m.] JUDGMENTS IN PERSONAM. 191 is only a matter of the sofficiency of evidence already spoken of.^ That an action cannot be maintained to recover money paid un- der a judgment, by reason of the subsequent discovery of evidence showing that the judgment should never have be^n obtained, was decided as long ago as in the year 1797 in the well-known case of Marriott v, Hampton.^ Though the contrary doctrine of Moses V. Macferlau, just cited, has been followed in one or two cases,^ the rule above stated in Marriott v. Hampton is now con- sidered as well settled.^ But a distinction has been made in the case of mosey obtained by extortion under color of legal process. In such a case it has been held that the money may be recovered.^ The ground of the decision was thus stated by Lord Denman : ' Is or is not the money sought to be recovered the money of the plaintiff 7 It is. How did the defendant obtain the money ? By fraud . . . This state of things differs the case entirely from those cited.^ In all the cases cited there was nothing to negative the bona fides.' In the case of one who is possessed of cumulative securities for debt the holder is entitled to as many judgments as he has ^ Supra, p. 188. back, though the suit result in favor of ' 7 T. R. 269, overruling Moses v, the party who paid it. Dawson v. Mann, Macferlan, 2 Burr. 1005. ' I am afraid,' 49 Iowa, 696. said Lord Kenyon, * of such a precedent. * Lazell v. Miller, 15 Mass. 207; If this action could be maintained, I Smith v, McCluskey, 45 Barb. 610. know not what cause of action could The plaintiff is not estopped in an ac- ever be at rest. After a recovery by tion for money had and received from process of law there must be an end of collections made by the defendant, by a litigation ; otherwise tnere would be no judgment for the defendant in a former security for any person. I cannot, there- suit upon a special contract to recover fore, consent even to grant a rule to show the same sum, if the only question sub- cause, lest it should seem to imply a mitted in the former action was con- doubt. It often happens that new trials ceming the special contract. Gage v. are applied for on the ground of evi- Holmes, 12 Gray, 428. dence supposed to have been discovered ^ Huffer v. Allen, L. R. 2 Ex. 14 ; after the trial, and they are as often Kirklan r. Brown, 4 Humph. 174 ; refused; but this goes much further.* Flint v. Bodge, 10 Allen, 128 ; In re Of course no action can be maintained May, 28 Ch. D. 516. See Caird v. Moss, to recover part of a sum of money ad* 88 Ch. D. 22, C. A. judged to be paid, on the ground that * Cadaval v. Collins, 6 Nev. k M. such part was plainly in excess of what 830 ; s. c. 2 Harr. k W. 54. was doe. Stempel «. Thomas, 89 111. * Marriott v. Hampton, 7 T. R. 269 ; 146. Indeed, it is held that where pend- Suowdon v. Davis, 1 Taunt. 859 ; Knibbs in^ suit money is paid in settlement of v. Hall, 1 Esp. 84 ; Brown «. McKinally, H disputed claim, it cannot be recovered ib. 279. 192 ESTOPPEL B7 RECORD. [CHAP. III. distinct securities ; though he will not be able to claim more than one satisfaction of his debt. Such a case arose in Butler V. Miller.^ That was an action of trover for property conveyed to the plaintiffs by chattel mortgage. The defence was a judg- ment confessed by the mortgagor to the mortgagee for the debt secured by the chattel mortgage. But it appeared in evidence that it had been agreed that the judgment should be taken as collateral to the mortgage. The court below held that if it was satisfactorily shown that the judgment was taken as collateral to the mortgage, there was no .mei^ger of the plaintiff's right of action on the latter. On appeal this ruling was affirmed ; but Mr. Justice Johnson, in speaking for the court, thought that there would have been no merger even without the agreement mentioned. It would scarcely be contended, he said, that in case the notes in question had been secured by a mortgage upon real estate a judgment upon them would have extinguished the mortgage. And a mortgage upon real estate was only a security and an incumbrance upon the land ; whereas a mortgage of per- sonal property was more than a security. It was a sale of the thing mortgaged, and operated as a transfer of the whole legal title to the mortgagee, subject only to be defeated by a perform- ance of the condition. If, then, a judgment upon the original debt would not extinguish a collateral security for its payment upon real estate, he could not see how it could divest a title to personal property acquired by purchase. Although it was clear that the not^s were merged in the judgment, it did not follow that all collateral remedies were extinguished. The debt was not yet satisfied ; and until that was done all collateral remedies remained. The rule that a security of a higher nature extin- guished inferior securities would be found to apply only to the state of the debt itself, and meant no more than this, that when an account was settled by a note, a note changed to a bond, or a judgment taken upon either, the debt in its original or inferior condition was extinguished or swaUowed up in the higher se- curity ; and that all the memoranda by which such inferior condition was evidenced lost their vitality. It had never been applied, he said, and never should be, to the extinguishment 1 1 Comst. 496 ; 8. c. 1 Denio, 407. SECT. III.] JUDGBIENT8 IN PERSONAM. 193 of distinct collateral securities, whether superior or inferior \n degree. These were only to be cancelled by satisfaction or vol- utary surrender.^ In Storer v, Storer ^ the plaintiff as administrator do bonis non sued the defendants in debt as administrators of the person to whom the plaintiff had succeeded in administration. The de- fendants pleaded in bar a decree of the Court of Probate on their administration bond giving the plaintiff judgment for the very demand now sued for, but in regard to which no exe- cution had issued. The court, however, held the action proper ; the ground being that the two remedies were merely cumu- lative. A judgment in a suit where the action is given as a remedy merely cumulative was no bar, it was said, without satisfaction. The case of Drake v. Mitchell ^ turned upon the same point. The action arose in this way: Three joint covenantors were sued for the rent of ceitain premises ; and among other things they pleaded that one of their number had given his promissory note and bill of exchange in part satisfaction of the rent, and that this, not having been x>aid at maturity, was sued upon by the plaintiff and judgment obtained against the maker. The plea alleged that the note had been given for payment and in satisfaction of the debt, but did not aver that it had been so accepted ; nor did it allege that the note had produced a satis- faction in point of fact The plaintiff demurred to the plea ; and the demurrer was sustained.* 1 See also Batler V. Miller, 6 Denio, other coUateral concurrent remedy which 159. the party may have. If, indeed, one who ^ 6 Mass. 890. is indebted u|K>n simple contract give * 3 East, 251. a bond or have judgment against him * Lord EUenborough said : ' I have upon it, the simple contract is merged always understood the principle of tran- in the higher security. So, one may sit in rem judicatam to relate only to agree to accept of a different security in the particular cause of action in which satisfaction of his debt ; but it is not the judgment is recovered operating as stated here that the note and bill were a change of remedy from its being of a accepted in satisfaction, and in them- higher nature than before. But a judg- selves they cannot operate as such un- ment recovered in any form of action is til the party has received the fruits of still but a security for the original cause them. And then, although they were of action until it be made productive in not originally given in satisfaction of satisfaction to the party ; and therefore the higher demand, yet, ultimately pro- till then it cannot operate to change any ducisg satisfaction, it would be a bar to 18 194 ESTOPPEL BY RECORD. [CHAP. HI. On the other hand, as follows from what has been stated on previous pages, the law will not permit a party who has re- covered in one action (whether of contract or of tort) a portion of an entire demand, to make the residue of it the subject of another suit.^ And it is immaterial whether the failure to sue 80 much of the demand.' Le Blanc, J. niise or satisfaction of his claim in the said : ' The giving of another security, course of an action embracing only part which in itself would not operate as an of an entire demand, without merging extinguishment of the original one, can- the whole. O'Beirne v. Lloyd« 48 N. Y. not operate as such by being pursued to 248. judgment unless it produce the fruit This subject was considered by Mr. of a judgment.' Lawrence, J.: 'The Justice Dewey in delivering the opin- judgment recovered on the bill is in ion of the court in Groodrich v, Yale, 8 itself no satisfaction until payment be Allen, 454. ' In what cases,' he says, obtained upon it.' 'a former judgment in a suit between 1 Davies v. New York, 78 N. Y. the same parties shall operate as a bar 250 ; Bancroft v. Winspear, 44 Barb, to further litigation by a new action is 209 ; Stark v. Starr, 94 U. S. 477, 485; a question of much nicety. The diffi- Baird v. United States, 9Q U. S. 480 ; culty arises, not so much for want of Berringer v. Payne, 68 Ala. 154 ; Bur- certain general rules upon the subject, ritt V. Bclfy, 47 Conn. 828 ; Marlbor- as from the doubt as to which class ough V, Sisson, 81 Conn. 882 ; Pinney of cases the one which is the subject V. Barnes, 17 Conn. 420 ; Smith v. of inquiry belongs. A suit and judg- Jones, 15 Johns. 229 ; WiUard v, Sper- ment thereon for the same cause of ry, 16 Johns. 121 ; Phillips v. Berick, action are said to be absolutely con- lb. 186 ; Miller v. Covert, 1 Wend, elusive as a bar to a second action. 487 ; Nathans v. Hope, 77 N. Y. 420 ; But it is equally true that the mere G'Dougherty v. Remington Paper Co., fact that the plaintiff has in his former 81 N. Y. 496 ; Guernsey v. Carver, 8 action declared for the same causes of Wend. 492 ; Bendernagle v. Cocks, 19 action does not necessarily present a Wend. 207 ; Fish v. FoUey, 6 Hill, 64 ; ca.se where the judgment in such action Marble v. Eeyes, 9 Gray, 221 ; Warren shall lie a bar to a subsequent suit for V. Comings, 6 Cush. 108 ; Stein v. one of the causes set forth in the former. Prairie Rose, 17 Ohio St. 471 ; Erwin Thus, in Seddon v. Tutop, 6 T. R. 607, V. Lynn, 16 Ohio St 589 ; South Ala- where the plaintiff in the former action bama R. Co. v. Henlein, 56 Ala. 868 ; had in different counts declared on a Oliver v. Holt, 11 Ala. 574 ; O'Neal i;. promissory note and for goods sold. Brown, 21 Ala. 482. This is not true and the defendant being default^ the in the case of contracts for services plaintiff, upon executing his writ of in- where the employer prevents perform- quiry, gave no evidence on the count ance ; the injured party being pei^ for goods sold and took his damages mitted to sue for his wages as they for the promissory note only, it was become due, from time to time, in sep- hold that the judgment was no bar to arate actions. Thompson v. Wood, 1 his recovering in a subsequent action Hilt. 93. See Goodman o. Pocock, 15 for the goods sold. But in that case Q. B. 576 ; Planch^ v, Colbnm, 8 Bing. there were two distinct demands set 14; Derby v. Johnson, 21 Vt 17; forth in distinct counts and not in the Moulton V. Trask, 9 Met. 577 ; Wil- least blended together. It is also true, helm V. Caul, 2 Watts & S. 26. So, a as held in the case of White v. Moseley, party may make a voluntary compro- 8 Pick. 856, that where there are db- SECT. UI.] JUDGMENTS IN PERSONAM. 195 for the entire demand was intentional or the result of mistake.* An action was brought in Pennsylvania^ for failing to accept a tinct torts, committed consecatively, causes of action ; and if he does bo, a bat in different localities, and the plain- judgment for damages upon the other tiff institutes his action for one only, causes of action will not bar a second such former suit and judgment thereon, suit for the causes of action for which although the action might properly have no damages were assessed. . . . The embraced both the torts, yet constitutes case before us differs from White v. no bur to a second action for the other Moseley, 8 Pick. 856, in the fact that act. On the other hand, the case of there the particular tort, the subject of Ti-a.sk V, Hartford and New Haveu the second action, was not embraced in Railroad, 2 i^Uen, 881, strongly asserts the declaration, or set forth as the cause and applies the principle that a judg- of complaint in the first action. It dif- ment in a civil suit upon a certain al- fers also in the fact that there the torts leged cause of action is conclusive upon were committed on different localities^ the parties in relation to it, and that the one on the premises of the plain- another si^t for the same cause cannot tiff, and the other not. That case came be maintained for any purpose whatever, before the court under very peculiar In that case the subjects of damages in circumstances. The plaintiff had in the the different actions were wholly dis- trial of his former suit insisted upon his tinct, the one being the loss of a shop, right to recover damages for the cause and the second the loss of a dwelling- of action set up in the second suit ; but house. No damages had been claimed the defendant opposing it upon the or recovered in the first action for the ground that the alleged trespass quare loss of the house ; but the loss of each clausum did not embrace the close was caused by the same tortious act, and where the second injury was done, the one recovery for any part of the dam- couit ruled that the evidence to support ages caused by such act was held a bar this claim of the plaintiff was not ad- to a second action. It was said by the missible, it being a distinct cause of ac- conrt in that case : *' It would be unjust, tion. White v. Moseley, 5 Pick. 230. In as well as in violation of the fixed rule the trial of the second action the ruling of law, to allow the plaintiff to subject maintaining it was based entirely upon the defendants to the hazard and ex- the assumption that the acts of the de- pense of another suit to obtain an ad- fendants were separate torts, and there- vantage which he lost either by his own fore constituted more than one cause of carelessness and neglect, or by an inten- action. The inquiry, therefore, n^ill be tional withholding of a part of his proof. " whether the present case, differing as it The inquiry is, Under which, if either, does from Seddon v. Tutop in having of these classes does the present case only a single count, charging com- fall ? It certainly differs from the case binedly a tort by raising and then shut- of Seddon ». Tutop, 6 T. R. 007, in the ting down the gate of the plaintiffs, fact that there the causes of action were instead of two distinct counts for sepa- on the face of them distinct and inde- rate causes of action, comes within the pendent, and were sought to be enforced principle there decided. The like in- as such by separate counts. That case quir}' will also arise as to the effect of only shows that a party may omit to the difference in the circumstances we assess his damages on one of several dis- have alluded to, in the case of White tinct counts for acknowledged distinct v. Moseley, in distinguishing that case 1 Wickenham v. Whedon, 38 Mo. 561. ^ Carvill v. Garrigues, 5 Banr, 152. 196 ESTOPPEL BY RECORD. [CHAP. UI. residue of certain goods under an entire contract ; and the de- fence was that the plaintiff had brought an action for the other from this. If this shall be taken to groand of damage, and did not direct have been but one cause of action, al- them to assess damages for shutting though damages might probably luive down the plaintiffs' gate. This is true ; been assessed for various distinct acts, but it is equally true that they did not then the case ^e have cited of Trask direct the assessors to assess damages V. Hartford and New Haven Railroad, for causing the water to flow down and which is abundantly sustained by other waste their reservoir, and at times flood authorities, would be decisive upon the their mill, aU of which were alleged as point that the former judgment is a bar injuries. The order seems to have first to this action. The case is barren of all declared a reference of the case. Then evidence as to the nature of the griev- follows an imperfect description of the ance complained of except as shown by alleged causes of damages. There is no the record of the proceedings in the apparent reason for naming one portion two actions. We turn, therefore, to the of the case rather than another as the declaration in the first action. We find subject for the assessment of damages, there that the tort complained of was It was certainly not a full recital of the that on divers days the defendant en- plaintiffs' alleged grievances. But if it tered upon the real estate of the plain- were to be taken that the assessors only tiffs without right and raised the gates reported upon one of the alleged facts, of their dam, and caused the water to it is quite clear that it was open to the flow down and waste their reservoir, and plaintiffs to ask for a recommittal for at times to flood their mill, and then by that cause, and under an enlarged rule, shutting the gate took away the water But the plaintiffs were content to take from their mill. Here the acts causing these damages as the damages for the the damages are stated as a series of entire trespasses that were set forth in connected acts occurring while the de- their declaration. But however this fendant was a trespasser by entering may be, we are of opinion that the judg- without right upon the real estate of ment in the former action must be a bar the plaintiffs, and the answers of the to the present one inasmuch as the defendant so treated the same, denying cause of action, as presented by the the allegation that he had entered upon plaintiffs on the record, is one and the plaintifis' real estate without right, the same. The grievance complained of and denying all the acts alleged as was an illegal entry upon the plaintiffs' wrongs connected with the trespass, land, and by various acts . . . render- Upon the issues thus joined that case, ing their mill valueless. The particular as appeared by the copy of the record, acts causing the damage to the mill ajne was referred to the assessors, '*to assess not set forth, as connected with a sep- the damages occasioned to the plaintiffs arate entry, but as a series of acts all of by the raising of the gate in the reser- which are combined as causing the in- voir dam, and make report thereof to jury to the mill. It is true that the the court.'* They did subsequently re- declaration does not restrict them to port that the damages sustained by the the proof of a single entry ; but it does plaintiffs in this case amounted to the connect all these acts with each and sum of $125, and judgment was there- every entry. It fails to state them upon entered for that sum. It is now as separate causes of action, or to al- said that this judgment is not a bar to lege them to have occurred at different the present action because the court did times.' not submit to the assessors this specific SECT. III.] JUDGMENTS IN PERSONAM. 197 portion of the goods, and recovered judgment and received full satisfaction. This was held a good defence ; the ground being that as the contract was entire, the plaintiff could not separate it into parts and bring an action for one part at one time and for another at another time.^ The case is different, it has been held, where there has been a fraudulent concealment of part of the cause of action by the defendant.^ In the case cited the facts were that an insurance company had taken a bond from their agent for the faithful performance of his duties. Judgment having been recovered upon the bond for money unaccounted for, a scire facias was issued, assigning as a further breach that the agent had before the judgment received a further sum for which he failed to account, the receipt of which he had fraudulently concealed. Upon demurrer the court held that this concealment justified the company in not presenting the sum in the original proceed- ing. It would seem that this decision might also rest on the ground that the scire facias was a mere continuance of the original action, and not an independent collateral proceeding.^ Difficulty concerning what is an entire demand often arises ; and this is particularly true with regard to cases where there are running accounts for goods sold, money lent or paid, or labor performed at different times ; or where there is but one contract with stipulations for payments or acts to be done at different times * With reference to this difficulty it has been laid down that the true distinction between entire and distinct demands is that the one kind arises out of one and the same act or contract, while the other kind arises out of different acts or contracts. Every trespass, conversion, or fraud gives one right ^ Smith V. Jones, 16 Johns. 229 ; was satisfied. The fraud was in pre- Farrington v. Payne, ib. 481. venting the plaintiff from proving in . * Johnson v. Provincial Ins. Co., 12 that case the full extent of his dam- Kich. 216. But see McCaffrey v. Car- ages.' But can such fraud be beyond ter, 125 Mass. 330. Lord, J. at p. 330 : remedy r ' The cause of action (and the plaintiff ' Eldred v. Hazlett, 88 Penn. St. 16. had but one cause of action) was not 'The revival of the original judgment concealed. The plaintiff knew its ex- [by scire facias] is but a continuation of istence, brought his action upon it, it.' Ibid, at p. 32. Post, p. 295. recovered judgment, and that judgment * Burritt v, Belfy, 47 Conn. 823. 198 ESTOPPEL BY RECORD. [CHAP. HI. of action and one only, however numerous the items of damage. So, every agreement express or implied affords one and but one action. Not is the case of a contract containing several stipula- tions an exception, for each stipulation is in the nature of a distinct agreement.^ And a contract to do several things at dif- ferent times is by the better opinion a divisible contract, allow- ing separate judgments.^ So it is said that when the part of a contract to be performed by the one party consists of several distinct and separate items, and the price to be paid by the other is set against each item to be performed, or left to be in- ferred by law, the contract will generally be treated as sever- able.^ But it is not enough that goods bought are bought by weight or measure, a price being fixed to the pound, yard, or bushel, to entitle the vendor to bring more than one action.^ Bemittent or even constant and continuous tort obviously stands upon a different footing ; an action may, as we have seen, be maintained for a continuance of the wrong after a former judgment as well as for any other distinct offence not already barred by judgment^ Such is not a case of continuing damage flowing from one and the same tort ; it is a new tort ^ Secor v. Stnrgis, 16 N. Y. 648 ; N. Y. 648, and Guemsey v. Canrer, Burritc v. Belfy, 47 Conn. 323. somewhat modified. See Barritt v. ' Barritt v. Belfy, supra ; Woods «. Belfy, sapra. Russell, 6 Bam. & Aid. 942 ; Denny * 2 Parsons, Contracts, 617 ; citing v. Williams, 6 Allen, 1, 4 ; Knight v. especially Johnson v. Johnson, 3 Bos. & New England Worsted Co., 2 Cash. P. 162 ; Mayfield v. Wadsley, 8 Bam. 271 ; Perry v. Harrington, 2 Met. 868 ; & C. 357 ; Robinson v. Green, 8 Met. Badger «. Titcomb, 15 Pick. 409, de- 159 ; and generally Mayor v. Pyne, 8 nying Guernsey v. Carver, 8 Wend. Bing. 285 ; Perkins v. Hart, 11 Wheat 492, which holds that a ranning con- 237, 261 ; Withers v. Reynolds, 2 Bam. tract for goods sold at different times if & Aid. 882 ; Sickels «. Patterson, 14 all are unpaid for is an entire demand Wend. 257 ; McEnight v. Dunlop, 4 and not severable. This last decision is Barb. 36, 47 ; Snook v. Fries, 19 Barb, reaffirmed in Benderaagle v. Cocks, 19 313 ; Carleton v. Woods, 28 N. H. Wend. 207. See also Bancroft v. Win- 290 ; Robinson t». Snyder, 26 Penn. St. spear, 44 Barb. 209 ; Andrews v. Du- 203. rant, 1 Kem. 35; Campbell Printing Co. * 2 Parsons, Contracts, 619 ; Clark ». Walker, 114 N. Y. 7. The case of Col- v. Baker, 5 Met. 452. vin V. Corwin, 15 Wend. 667, holding » Ante, pp. 169-174 ; Kilheffer v. thntpurchaseby the defendant of lottery Herr, 17 Serg. & R. 319 ; Smith v. El- tickets at two different times and places liott, 9 Barr, 345 ; both cases being from two different agents of the plain- actions for continuance of a nuisance, tiff constituted but one entire demand, after a judgment in damages for an is overraled by Secor v. Sturgis, 16 earlier stage of the same. SECT. III.] JUDGMENTS IN PERSONAM. 199 The plaintiff in a judgment by default cannot prevent the de- fendant from bringing suit by volunteering his case and allow- ing him a partial credit for a separate claim.^ In the case cited the plaintiff sued for goods sold and delivered ; the defence was that the goods had been credited by the present defendant in an account annexed to a writ sued by him against the present plaintiff before the commencement of this action, in which for- mer suit judgment had been rendered by default The plaintiff desired to prove in the court below that the amount thus cred- ited was not equal to the value of the goods ; but the court refused to hear the evidence, on the ground that the former judgment was conclusive of the value of the goods. The case was appealed and the judgment reversed. Mr. Justice Wilde, referring to the argument that the evidence offered would tend to impeach the former judgment, said that the maxim 'judicium semper pro veritate accipitur' did not apply. The defendant in the former suit was not bound to avail himself of the plain- tiff's admission or confession of payment. He was not bound, to prove the value of the goods at his own expense, when by bringing suit for them the expense would be thrown upon the opposite party. Such a rule as the present defendant contended, for would often be productive of injustice. He then added this, illustration : ' Suppose a case of mutual demands between A and B, A's demand against B being S20, and B's demand against A, $30. If A sues B, and credits B's demand of $30 at only $15, how upon the principles advanced by the defendant's counsel; can B recover his balance of A ? He can recover no balance in. A*s suit; and if judgment in that suit is conclusive, he can have no remedy.* And he added that, though the party might file his account and claim a set-off, still the statute did not compel him to do so. Entries lawfully made of record after judgment, arid having relation thereto, have a like conclusive effect with the recoi-d of the judgment itself. Thus, when a purchaser under judicial sale obtains an extension of time for payment and has the same duly 1 Minor v. Walter, 17 Mass. 287. 200 ESTOPPEL BY RECORD. [CHAP. HI. entered of record, he will be concluded against alleging payment as having been made at the .time of such entry .^ We have elsewhere remarked that the estoppel is not to be evaded by changing the form of action from that employed in the first suit.^ In Slade's Case it was resolved by all the jus- tices and barons of England, 'after many conferences/ in the language of Lord Coke, that the plaintiff in that action on the case in assumpsit should recover not only damages for t^e special loss which he might have sustained, but also for the whole debt, ' so that a recovery or bar in this action would be a good bar in an action of debt brought upon the same contract ; so vice versa a recovery or bar in an action of debt is a good bar in an action on the case on assumpsit.* But a judgment in trover for the defendant is no bar to an action for money had and received by the .defendant for the plaintiff's use in respect of the same matter for which the action of trover was brought* And this shows that the form of ac- tion may in some instances be changed where the cause of action remains substantially the same, without the fear of a plea in bar. The circumstances under which this may be done would seem to be where it cannot be certainly known that the verdict and judgment in the former action were based upon matters which would negative those alleged in the subsequent suit. But the mere change of the form of action, where it is certain that the former judgment negatives the claim or matter alleged in the second action, will have no effect, and a plea of the former trial will be au absolute bar to a new suit;^ otherwise the doctrine of res judicata would be a mere delusion. It is in accordance with the principle in the foregoing cases that where a party has presented a claim before a court of jus- 1 Haralson v, George, 56 Ala. 295. * Hitchin o. Campbell, 3 Wils. 240 ; 3 Ante, p. 86; Slade's Case, 4 Coke, Bockland v, Johnson, 15 C. B. 145 ; 92 b, 94 b ; Stowell v. Chamberlain, 60 8. c. 26 Eng. L. & E. 828. N. Y. 272 ; Taylor v. Ca.stle, 42 CaL « Routledge v. HUlop, 2 £L & £. 367 ; Ware v. Percival, 61 Maine, 891 ; 549. Hatnh v. Coddington, 82 Maine, 92; Hardin v. Palmerlee, 28 Minn. 450. SECT. III.] JUDGMENTS IN PERSONAM. 201 tice, and judgment hfU3 been pronounced against its validity, he cannot escape the effect of the adjudication by filing the same matter in set-off in a subsequent action against him by the de- fendant.^ So, where a defendant has pleaded a matter in set-off which has been adjudicated against him, he cannot afterwards, as we have seen, make it the subject of an action.^ Nor will it change the effect of a former judgment that an- other matter has been added to the ground of complaint, if the original ground is presented also ; ^ parol evidence being admis- sible, if necessary, to show what was decided in the former suit^ In the case first cited a former suit for judicial separation had been dismissed, in which the ground of complaint alleged was cruelty. In order to avoid the effect of the decree the petitioner now added a charge of adultery to that of cruelty, and prayed for a dissolution of the bonds of matrimony. But the court held the former decree a bar against the chaige of cruelty. It is a general principle too that a party or privy cannot re- Utigate in a collateral action in chancery a matter adjudicated in a court of law.* The point has been frequently so decided.* The case first cited was this in brief : The defendant's testator had bought laud at sheriff's sale under an execution at law against the complainant's grantor. Subsequently to the levy on the land the defendant in the original suit at law had conveyed it to the complainant The executors of the purchaser at the execution sale being about to dispose of the land^ the complain- ant sought to restrain the sale in chancery and compel the executors to convey to him ; the ground being that the levy on the land and the sale were unauthorized. The suit was dis- missed. The court said it was possible that the plaintiffs in the 1 Jones V, Richardson, 6 Met 247. Green, 417 ; Baldwin v. McCrea, 88 * Eastmnre v. Laws, 5 Bing. N. C. Ga. 650 ; Broda v. Greenwald, 66 Ala. 444 ; ante, p. 174. 588 (judgment on an account stated be- * Finney v. Finney, L. R 1 P. ft D. tween parties, followed by an attempt 488 ; Wilson v. Deen, 121 U. S. 525. in equity to surcharge and falsify) ; * Wilson V. Deen, supra. See ante, Strang v. Moog, 72 Ala. 460 ; Wetumpka p. 87. V. Wetumpka Wharf Co., 68 Ala. 611 ; * So 6 convf^rao. Clark v. Wiles, 54 Alabama Warehouse Co. o. Jones, 62 Mich. 328 ; ante, p. 99. Ala. 550 ; Mayor v. liord, 9 Wall. 409 ; « Hendrickson v. Norcross, 4 C. & Tilson v, Davis, 82 Gratt 92, 104. 202 ESTOPPEL B7 RECORD. [CHAP. in. suit at law were not entitled to a levy on the land ; but the defendant, the complainant's grantor, was duly served with notice in that action, and having allowed judgment to go against the land, be could not now disturb the sale in this collateral way. Judgment at law has, however, no efTect in equity in regard to matters relating to the same cause, if cognizable only in a court of equity.^ Thus, judgment at law against the validity of an instrument as a deed, for want of delivery, will not shut off resort to equity to enforce it as a contract to convey.^ So, if there be equitable defences to an action at law which were not available there, such as part performance to an action of eject- ment,^ or if facts existed of which a party was prevented from availing himself by fraud, or by accident unmixed with negli- gence on his part, he will be entitled to have any judgment ren- dered against him at law enjoined ; ^ if, on the other hand, the defence in question could by the exercise of reasonable diligence have been made at law, no injunction will be granted.*^ Finally, judgments do not affect after-acquired rights ; the right must have been in existence so as to have been drawn in issue at the time of the suit.^ But that, of course, is not saying that parties not then in existence may not be bound. § 4. Collateral Impeachment of J'iidgiaents. Having completed the consideration of the first three divisions of domestic judgments, we come now to the fourth, in which it ^Jenkins v, Harrison, 66 Ala. Hendrickson o. Hinckley, 17 How. 448; 845 ; Yarborongh v. Arant, ib. 526 ; Marine Ins. Co. o. Hodgson, 7 Cranch, Wetumpka v. Wetumpka Wharf Co., 882; Pearce ». Olney, 20 Conn. 544; 63 Ala. 611; Parker v. Jadges, 12 Dobson v. Pearce, 12 N. Y. 156. But an Wheat. 561 ; Bum r. Caryalho, 4 issue of fraud tried at law is conclusive Hylne & C. 690. in equity. Wilkins v. Judge, 14 Ala. 3 Jenkins v. Harrison, 66 Ala. 845. 185. See Strang v. Moog, 72 Ala. 460. » Yarborough v, Avant, 66 Ala. 626. • Embrey «. Palmer, supra ; Phos- See Pendleton v, Dalton, 92 N. Car. phate Sewage Co. v. Malleson, 4 App. 185 (dismissal of bill for specific per- Cas. 801, 814; Dundas v. Waddcll, 5 formance no bar to recovery of money App. Cas. 249. pei'l on contract of purcbsse); Beere * Wisconsin «. Torinus, 28 Minn. 9. Fleming, 18 Ir. C. L. 506 ; ante, p. 175. 180 ; Newington v. Levy, L. R. 7 59. C. P. 180; ante, p. 79^ in regard to * Embrey v. Palmer, 107 U. S. 8, 11 ; partition. SECT. IV.] JUDGMENTS IN PERSONAM. 203 is intended to show under what circumstances and in what par- ticulars a domestic judgment is liable to impeachment in a collateral action ; an action, that is to say, not begun for the purpose of annulling or enjoining the execution of the judg- ment.^ We have already seen that strangers may impeach judgments in collateral actions; we are now to ascertain if parties, or those who might have been parties, ever have the like privilege. The only grounds upon which a judgment can be impeached in a collateral action are, want of jurisdiction and fraud. First, then, of contesting the jurisdiction. In the case of judgments of the superior courts parties who have had an opportunity to be heard (and such only^, and their privies,' are, in general, according to most of the author- ities, held estopped in collateral actions to deny the jurisdiction of the court in which the former judgment was recovered, unless it appear from the face of the record that the court had not ac- quired jurisdiction.^ That is, in such cases there is a couclu- 1 A suit to recover back money paid ElHaon, 13 Ohio St. ii^ ; Kennedy v. under a judgment is of course a collat- Georgia Bank, 8 How. 586 ; McComiick era! proceeding. See cases ante, p. 181. v, Sullivan t, 10 Wheat. 192, holding * McCoy V. McCoy, 29 W. Va. 794, the same to be true of the United States 807 ; Haymond v, Camden, 22 W. Va. oonrts, as not being courts of inferior 182 ; Stevens v. Brown, 24 W. Va. 286 ; jurisdiction. Underwood o. McVeigh, 28 Oratt. 409. Contra, in New Vork. Ferguson v, * Who are meant by parties and Crawford, 70 N. Y. 253. And in prin- privies has been seen ante, pp. 114, 115 ciple this appears to be right. A de- (partiea), 142-144 (privies). Strangers, cision is a judgment if the court had not interested legally in the cause at jurisdiction, otherwise not. Hence the the time of the former trial, cannot im- jurisdiction ought always to be open to peach the judgment, in the absence of inquiry. This result has been reached foLud upon them. Wileher v. Robertson, with regard to judgments rendered in a 78 Va. 602, non-resident. See ante, sister state. Thompson v. Whitman, p. 48. 18 Wall. 457. See chapter 6. An * Plume V, Howard Inst., 46 N. J. attorney of record, who represented the 211 ; Morse v. Presby, 25 N. H. 299 ; plaintiff by bringing suit and taking Carleton o. Washington Ins. Co., 35 judgment for him, cannot urge on his N. H. 162; Wingate v, Haywood, 40 own behalf as a creditor the invalidity N. H. 437 ; Wandling r. Straw, 25 W. of such judgment for want of process. Va. 692 ; Penobscot K. Co. v. Weeks, Kennedy v. Redwine, 59 Ga. 327. See 52 Maine, 456 ; Mercier v. Chace, 9 Jones v. Hawkins, 60 6a. 52, 56 ; King Allen, 242 ; Lantz v. Maffett, 102 Ind. o. Penn, 43 Ohio St. 57. But that is 23 ; Wiley o. Pratt, 23 Ind. 628 ; Coit not estoppel by record. Consent cannot V. Haven, 80 Conn. 190, and cases give jurisdiction, but an admission or a cited ; Pardon v. Dwire, 23 111. 572 ; statement of facts may ; whinh when Clark V, Bryan, 16 Md. 171 ; Callen «. acted upon will work an estoppel Bail- 204 ESTOPPEL BT BEGOBD. [CHAP. HI. sive presumption that the steps required of the plaintiff to obtain jurisdiction over residents^ were taken; as, for in- stance, that due service or publication was made, or appearance entered. But there is authority for the position that the pre- sumption is not conclusive, if the plaintiff has brought suit against one personally who is under legal disability; though there is conflict on the point. The weight of authority appears to be that (while such party cannot deny service, publication, or appearance) he or she may show the disability in a collateral action, at least if the former judgment was by default.^ The presumption of jurisdiction just mentioned prevails, how- ever, only in regard to judgments of the superior courts * in pro- ceedings carried on according to the course of the common law. In the case of proceedings not according to the common law, at least in regard to jurisdiction, a different doctrine is gen- erally held to prevaiL It was laid down, however, in a Cali- fornia case,^ that if the record of such a court averred nothing indicating a want of jurisdiction, the same presumption would arise as in proceedings in accordance with the common law. But that case has been overruled ;* and, indeed, the weight of author- ity is clearly the other way,*^ unless there is ground for a distinc- way Co. V. Ramsey, 22 Wall. 822, 327; « Hahu v, Kelly, 84 Cal. 891. Thornton v. Baker, 15 R. I. 558, 555. ^ Belcher v. Chambers, 58 Cal. 635. ^ There is no such presumption in * Qalpin v. Page, 18 Wall. 350 ; regard to non-resident defendants. Morse v. Presby, 25 N. H. 299 ; Carle- Thompson V. Whitman, 18 Wall. 457. ton v. Washington Ins. Co., 85 N. H. See next chapter. 162; Embury o. Conner, 8 Comst. 511 ; It must be remembered that citizens Huntington v, Charlotte, 15 Vt. 46 ; and residents of the state are bound by Clark v, Bryan, 16 Md. 171 ; Bumstead its laws in regard to modes of acquiring v. Read, 81 Barb. 661 ; Arthur r. State, jurisdiction. See In re Union R. Co., 22 Ala. 61 ; Hairis v, Hardeman, 14 112 N. Y. 61 ; Schibsty v. Westenholz, How. 884. But see Tibbs v. Allen, 27 L. R. 6 Q. B. 155 ; Rousillou v. RousU- 111. 119. It was there adjudged, in an Ion, 14 Ch. D. 851. appeal instead of in a collateral action, ^ Griffith V, Clarke, 18 Md. 457 ; that the absence of an affidavit of the Moore v, Toppan, 8 Gray, 411 ; Whit- non-residence of the defendants from the ney v. Porter, 28 111. 445 ; Graham v. record was not sufficient ground for Long, 65 Penn. St. 888. Contra, Hort- reversal ; the proceeding being one of man v. Osgood, 54 Penn. St. 120 ; Sim- notice by publication. So Falkner v, mons V, McKay, 5 Bush, 25; Blake v. Guild, 10 Wis. 568, also a case of statu- Douglass, 27 Ind. 416. This point is tory proceedings, but Involved in a col- considered ante, pp. 116-118. lateral action. Paine, J. speaking for * See Mulligan v. Smith, 59 Cal. the court, said : ' The gpneral rule in re- 206, 233. spect to such courts [supenor courts] is, SECT. IT.] JUDGMENTS IN PERSONAM. 205 tion based upon the fact that the general powers of the court, and not merely its mode of acquiring jurisdiction, are limited. But it is very doubtful if any such distinction can be properly made ; for the court is still presided over by men skilled in the law, and its proceedings are still had with deliberation and solem- nity. Indeed, it has been laid down as well settled that the judgments of couits of superior jurisdiction, while acting within statutoiy limits, are open to examination where all things nec- essary to the jurisdiction do not appear on the record ; and that everything which does not distinctly appear by the record to be within the jurisdiction will be presumed to be without it.^ In the case, then, of inferior courts, and (according to the weight of authority) of superior courts when acting under limited powers, or not proceeding in the matter of obtaining jurisdiction accord- ing to the course of the common law, the jurisdiction may be collaterally impeached in case all the facts necessary to give jurisdiction are not spread upon the record.' And the English Court of Admiralty is an inferior court in this respect' But the federal courts of the United States do not belong to this at all events where jurisdiction appears, ularity of its action.' See also Lang- tliat though the record does not show worthy v. Baker, 28 111. 484. everything necessary to regularity, it is ^ Carleton v. Washington Ins. Co., to be presumed nnless the contrary ex- 85 N. H. 162, 167 ; Morse v, Presby, pressly appears. And even if irregular- 25 N. H. 299, 302, and cases cited. ity or gross error do appear, the judg* Coinp. Commonwealth v. Blood, 97 ment cannot be questioned collaterally. Mass. 538 ; Croswell, Executors, §§18- It is true that proceedings under special 26. statutes have sometimes been made an * Rowley v. Howard, 28 Cal. 401 ; exception to this general rule as to pre- Clark v. Bryan, 16 Md. 171 ; Simons v. sumption, even in courts of general ju- De Bare, 4 Bosw. 547 ; Steen v. Steen, risdiction. But without entering into 25 Miss. 518 ; Oray v. McNeal, 12 Ga. the inextricable labyrinth of cases on 424; Crawford v, Howard, 80 Maine, the subject we will only say that we 422; Lewis o. Allred, 57 Ala. 628 ; Todd can see upon principle no reason for the v. Flournoy, 56 Ala. 99, 112 ; Jones v, distinction. The general presumption Bitter, ib. 270, 280. It appears to be in favor of the regularity of the pro- necessary in Alabama for the record to oeedings of such courts is founded on show that the inferior court had juris- the character of the court itself. And diction. See the cases just cited, that character is the same whether it * Harris v. Willis, 15 C. B. 709. In act under a special statute or under the this case it was held that a plea of a common law. I cannot see that a dif- judgment in admiralty, ' after due pro- ference in the source of its authority to ceedings had,' and ' in due form of law,' act can make any rational distinction as was insufficient to show that the court to the presumption in favor of the leg* had jurisdiction. 206 ESTOPPEL BY RECORD. [CHAP. III. class.^ If all the facts necessary to give the court jurisdiction are spread upon the record^ these may perhaps be taken to be conclusive in the courts of the same state.^ In all cases, on the other hand, where the record taken together shows affirmatively that the court had not jurisdiction of the cause, that is, where the record contains express averments respecting jurisdictional facts which show that in law jurisdiction was not acquired, the judgment is null and void.' And this is true, though the party impeaching the judgment for want of jurisdiction be the one who instituted the proceedings alleged to be void.^ But when the original proceedings were properly commenced, and jurisdic- tion obtained by the attachment of property in the hands of a trustee (garnishee), a defect in the notice that should subsequently be given to the principal defendant is not such an irregularity as will render the judgment a nullity, though the defect may be sufficient cause for reversal in a court of error.* But the rule that the jurisdiction of inferior courts is open to inquiry is perhaps subject to the following qualification : If the inferior court has, on general appearance of the parties, passed upon the jurisdictional facts and found them sufficient, and the record is consistent with the finding, the parties and their privies have by some courts, but not by all, been deemed estopped in collateral actions in the same state ^ to litigate the matter againJ 1 McConnickv. Sallivant, 10 Wheat, upon foreign courts. See Thompson v, 192; Wandling V. Straw, 25 W. Va. 692. Whitman, 18 Wall. 457 ; Rnowles v, a Secombe v. Railroad Co., 23 Wall. Gaslight Co., 19 Wall. 68 ; Hanley v, 108. But recitals of jurisdiction are at Douoghue, 116 U. S. 1,8; showing that best only prima facie evidence in any recitals of jurisdiction are not binding case in New York. Ferguson v. Craw- in other states. Non-residents, not in- ford, 70 N. Y. 253. terested at the time of the judgment, ' Penobscot B. Co. u. Weeks, 52 cannot impeach it. Wilcher v. Robert- Maine, 456 ; Parish v. Parish, 82 Ga. son, 78 Va. 602. 653 ; Mayo v. Ah Loy, 32 CaL 477 ; ^ Sheldon v. Wright, 5 N, Y. 497 ; Mercier v, Chace, 9 Allen, 242 ; Bruce Dyckman v. New York, ib. 434 ; Mc- V, Gloutman, 45 N. H. 87 ; Gay v. Feely v. Scott, 128 Mass. 16 (statute as Smith, 38 N. H. 171. to jurisdiction of Probate Court; but * Mercier v. Chace, 9 Allen, 242. before the statute the rule was different, ^ Carleton v. Washington Ins. Co., as appears from this case and from Jo- 35 N. H. 162, explained in Brace v. chumsen v, Suffolk Bank, 3 Allen, 87) ; Cloutman, 45 N. H. 37. Montgomery v. Wasem, 115 Ind. 843, * But as to non-residents it Ib ex- 347; Muncey p. Joest, 74 Ind. 409, 412 ; tremely doubtful whether any ad^iudica- Porter v. Porter, 29 N. Y. 106; Shaw- tion of jurisdiction would be binding ban o. Loffer, 24 Iowa, 217 ; Bonsall v. 8ECT. lY.] JUDGMENTS IN PERSONAM. 207 And if the parties reside within the jurisdiction of the court, it is thought to make no difference whether they were personally served with process or appeared, so long as the steps required by the statute for obtaining jurisdiction were taken. This was directly decided by the Court of Appeals of New York in both of the cases cited. In Sheldon v. Wright the question arose in respect of the jurisdiction of a surrogate under publication of an order for persons interested to show cause against the sale of certain property. The surrogate had decided that the publica- tion was regular ; and his judgment appeared on the record of the proceedings.^ Isett, 14 Iowa, 809 ; Segee v, Thomas, notice znalces no difference. If there 3 Blatchf. 11 ; Hungerford v. Cashing, is any difference, it is in favor of him S Wis. 824 ; Bridgeport Savings Bank who has been served with personal 9. fildredge, 28 Conn. 556 ; Bolton v. notice ; for such a notice is, in general, Brewster, 82 Barb. 889 ; Kipp «. Fuller- more difficult to prove after a consider- ton, 4 Minn. 478 ; Galena & C. R. Co. able lapse of time than a notice by pub- V. Pound, 22 111. 899. But see Goudy lication. ... It cannot be, therefore, V. Hall, 80 111. 109, holding that such that the acknowledgment or denial of abjudication is prima facie evidence, a the right of a party to a summary or case referred to in Secrist v. Green, 8 other judicial proceeding to disregard Wall. 744, as declaring the law of Illi- the record of it and litigate collaterally nois. See Croswell, £zficutors, §§18- a jurisdictional fact depends on hisap- 26. An adjudication of the question pearance or non-appearance.' He then who are parties to a suit binds all who proceeded to state that the surrogate's were duly served with process. Ander- decision upon the regularity of the pub- sou V, Wilson, 100 Ind. 402, 407. lication conclusively determined the 1 Mr. Justice Foot, in delivering question of jurisdiction. Referring to judgment, said that the case differed the language upon the question of jnris- in one particular from that of Dyck- diction used in the cases of Borden v. man v. New York, just cited. In that Fitch, 15 Johns. 121, 141, Mills r. Mar- case, a summary proceeding, Dyckman tin, 19 Johns. 7, 88, and Latham v, had appeared and litigated the merits Fdgerton, 9 Cowen, 227, 229, that ' the of the qnestion ; while in the present vrant of jurisdiction is a matter that al- case the appellant had not appeared, waysmay be setup against a judgment,' ' The qnestion then arises,' said he, he said that the judges only intended to ' does his omission to appear place him say that the want of jurisdiction might in a more favorable condition for litigat- always be set up agaiust a judgment ing the jurisdictional fact ; or, in other when that fact appeared on the record, words, can a party to a judicial proceed- or was presented in some other unexcep- ing> by lying by and omitting to appear, tionable manner. The principle in Bor- acquire a right to open the proceeding den v. Fitch was opposed by no case at any time, and lit^te in a collateral within his knowledge, and it was sim- sction a jurisdictional fact ? It will be ply this ; that when a form or mode of perceived at once that if the right de- notice of a judicial proceeding is pre- pends on appearance or non-appearance, scribed by statute, and the par^ resides the fact that the party claiming it has within the terrHorial jurisdiction of the been served with personal or statutory state and court, a notice in the mode 208 ESTOPPEL BY RECORD. [CHAP.in. In the case of Porter v. Purdy,^ in which the same point M'as considered, there had not in point of fact been an adjudication. The proceedings in the case sought to be impeached were had under the statute authorizing the appointment of a certain num- ber of freeholders to assess the expense of a certain improve- ment. One of the persons so appointed was not a freeholder ; and it was contended that the proceedings were therefore void by reason of a want of jurisdiction. But the court held other- wise. The principle to be applied was this : When in special proceedings in courts or before officers of limited jurisdiction they are required to ascertain a particular fact, or to appoint persons to act having particular qualifications or occupying some peculiar relations to the parties or the subject-matter, such acts when done are in the nature of adjudications, which if erroneous must be corrected by a direct proceeding for that purpose ; and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be.^ It was, indeed, sometimes said that entertaining cognizance of a cause is a conclusive finding of the facts constituting juris- diction ; ^ but this might be doubted ; and it was not such an adjudication as was here intended. In case of appearance by attorney the question has arisen whether the parties are estopped to deny the attorney's au- thority. The question was recently brought before the Supreme Court of Indiana.^ The plaintifis in the case cited brought an action to have certain conveyances set aside, which had been made by virtue of a judgment against them in favor of the present defendants. They alleged that no notice had been given them of the former proceedings, and that certain attorneys had appeared and filed an answer for them without their knowledge or authority ; and the court allowed them to disprove the au- designated is sufficient to give the court ^ 29 N. Y. 106. junsdiction. These were the facts in ^ See also Van Steenbergh v. Bige- this case, but he refused to place his low, 3 Wend. 42. Comp. proceedings opinion on this ground, as that would on municipal bonds, post. recognize the right of the party to in- • Cox v. Thomas, 9 Gratt. 823 ; Clary stitute an inquiry respecting the juris- v, Hoggland, 6 Cal. 685 ; Washing- 13 Penn. St. 859. 216 ESTOPPEL BY RECORD. [CHAP. ni. effect in other cases not already cited. ^ ,But there have also been decisions to the contrary.^ The point was raised in a re- cent case in the Supreme Court of Iowa.' The offer to prove that the judgment had been procured by fraud was rejected in the court below ; exceptions were taken, and the ruling was sustained on appeal The court said : ' If a judgment can be attacked for fraud in any case, it can only be by a direct pro- ceeding/ ^ And in a late case in Tennessee the same doctrine was held even in regard to a judgment rendered hy a justice of the peace.^ The attempt tbere was to rectify a judgment ob- tained by fraud, by bringing a new action for the same cause ; but the court held the former judgment a bar. Nor, where this view prevails, will the attempt to rely upon fraud be more suc- cessful in equity than at law when the judgment is not attacked by a direct proceeding to set aside or to enjoin or otherwise annul it.® It is clear, however, by our authorities as well as by those of England, as we have seen, that the plea of fraud in obtaining the judgment relied upon by the opposite party is good, gener- ally speaking,^ in favor of third persons whose rights have been affected by the judgment.^ This is certainly true of the case of creditors and others seeking to impeach a judgment for fraud upon themselves.^ Between the parties to the former judgment ^ See Smith v. Keen, 26 Maine, * Boston & W. R. Co. v, Sparhawk, 411 ; Thouvenin v, Rodriques, 24 Texas, sapra. 468 ; Hartman v, Ogborn, 54 Penn. St. ^ Upon the limits to this doctrine see 120. ante, pp. 150, 151. * Anderson v, Anderson, 8 Ohio, 108; ^ See, besides the cases above cited, Boston & W. R. Co. v, Sparhawk, 1 Gaines v. Relf, 12 How. 472 ; Hall 9. Allen, 448 ; McRiie v. Mattoon, 13 Pick. Hamlin, 2 Watts, 354 ; Dougherty's 53 ; Christmas v. Russell, 5 Wall. 290 ; Estate, 9 Watts & S. 189 ; Thompson's Kelley i7. Mize, 8 Sneed, 59 ; Kii-by v. Appeal, 67 Penn. St. 175 ; ante, pp. Fitzgerald, 31 N. Y. 417 ; Hammond 150, 151. V. Wilder. 25 Vt. 342, 346 ; Smith t>. • In Thompson's Appeal, supra, the Smith, 22 Iowa, 516. But concerning court says : ' Where a collusive judg- judgments rendered in foreign lands, see ment comes into collision with the in- Cammell v. Sewell, 8 Hurl. & N. 617. terests of creditors, they may avoid the And see the chapters on Foreign Judg* effect of it by showing it to be a nullity ments. €l» to ihemidveg^ and in doing so they ' Smith v. Smith, supra. do not impair its obligation between ^ Mason v. Messenger, 17 Iowa, 261. the original parties upon whom it is un* ^ Kelley v. Mize, supra. See also donbtedly binding ; a fraudulent judg- Yan Doren t?. Horton, 1 Dutch. 205. ment, like a fraudulent deed* being SECT. IV.] JUDOMBNTS IK PERSONAM. 217 it is not easy, on authority merely, to detennine what should he the rule of law. The language of the House of Lords in Bandon V. Becher ^ appears, however, to suggest the true answer, though the contest there was between third persons. In this case the court says that ' a sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled ; in order to make a sentence there must be a real interest, a real argument [where there was any at all], a real prosecution, a real defence, a real decision. Of all these requi- sites not one takes place in the case of a fraudulent and collu- sive suit' That appears to mean that such a 'judgment ' would be absolutely void. This brings us to the second question, the meaning of the term ' fraud ' in the general inquiry. False or perjured evidence clearly does not satisfy it; there may be a real cause, a real issue, a real trial, and therefore a real judgment, notwithstanding such evidence.^ Indeed, the fact that conspiracy is added, and that the demand itself is a sham, cannot help the matter, accord- ing to the better view.' No decision would be safe if a judgment good against aU but the interests in- Flower v. Lloyd, 10 Gh. D. 827, C. A. tended to be defraaded by it. Bat (a foreign judgment ; but see as to such they cannot call upon the court to va- a case Abouloff v. Oppenheimer, 10 cate it on the record, which would Q. B. D. 295, C. A.). False swearing annul it as to the whole world.' It as to jurisdictional facts, such as resi- follows, of course, that if the judgment dence, is a different thing, and, in the creditors cannot vacate the judgment, absence of statute to the contrary, may they cannot collaterally impeach it ordinarily be shown in a collateral ac- merely because it was a frand upon the tion. See McFeely t*. Scott, 128 Mass. debtor. To enable them to do so it 18, 20. But as to adjudications upoa must have been a fraud upon them- such matters, see ante, p. 206. selves ; and this proposition the learned ' Engstrom v. Sherburne, supra ; judge so states in his opinion. See also Graham v. Boston R. Co., supra ; Gas- Lewis V. Rogers, 16 Penn. St. 18 : trique v. Behrens, 8 El. & B. 709 ; post, ' Greditors can attack a judgment collat- p. 254, note. Gontra, Spencer v. Vig- erally only for collusion.' Gibson, G. J. neauz, 20 Gal. 442, it seems. The 1 3 Clark & F. 479. judgment was by default as to the one ' Engstrom v, Sherbnme, 137 Mass. innocent defendant, against whom the 162 ; Greene v, Greene, 2 Gray, 361 others conspired. Still, the plea was (see F^ison v. Edsou, 108 Mass. 590, the plainest impeachment of the judg- 597, 598); Homer v. Fish, 1 Pick. 485; ment. It did not confess and avoid it, Graham v. Boston R. Co. 118 U. S. as in Howlett v. Tarte. 10 C. B. N. 8. 161 ; Peck v. Woodbridge, 8 Day, 80 ; 813, infra. See ante, p. 75. GiLiton V, Cod wise, 1 Johns. Gh. 195 ; If a fraud at all, the false swearing 218 ESTOPPEL BT RECORD. [CHAP. III. o» could be attacked on such grounds, in a collateral proceeding vpbile the judgment is still in force.^ The case of Eiigstrom v. Sherburne was an action by one of several defendants, who had appeared and answered to an action resulting in judgment against him (by default) and them ; the plaintiff allegiiig that the other parties to the former suit had conspired together successfully to obtain the judgment and have his property sold thereunder upon a sham demand. It was held that the action could not be maintained. Indeed, the rule, eu^cui-ately stated, so far as there is such a rule, appears to be that a judgment obtained by fraud may be impeached, not that a judgment may be impeached for fraud ; * and the true question is of the meaning of the term ' fraud ' within that rule. In another work^ the author has sought to show that fraud means ' endeavor to alter rights by deception touching motives or by circumvention not touching motives.' The first-named wrong in the definition, 'deception,' implies some transaction, like an agreement, between the wrongdoer and the party wronged ; the second, * circumvention,' some trans- axition between the wrongdoer and a third person, as in the case of a conveyance by a debtor in fraud of his creditors. Where the wrongdoing consists only in bringing forward false evidence, or where there is only an overreaching, there is no fraud within the. definition or within the authorities. But where tliere is any agreement at the trial between the parties, tainted with mis- representation scienter, or other fraud in the way of deception against the rights in law of the party complaining of the judg- and conspiracy are a fraad upon the to destroy it. And that is the meaning State ; there is no fraud upon any right of the authorities, of the innocent party, — he has no * That is, to repeat the text in an- 'right,' 'jus,' in the legal sense, to re- other way, the distinction is between a quire truthful evidence from the other sham demand or cause of action, upon side. Fraud, to come within the notice which a judgment has been obtained in of the law, must be upon a legal right, the ordinary way, and a demand estali- See 1 Rigelow, Law of Fraud, 13. lished by fraud in the very course of 1 Newly discovered evidence of that the trial. Judgment in the first case is kind might be ground for a new trial or binding until impeached in some direct for a proceeding to annul the judg- proceeding to avoid it, otherwise a ment ; but clearly it should be more judfonent could be impeached for false difficult to impeach a judgment in a evidence. collateral procMding, which still leaves * 1 Bigelow, Law of Fraud, pp. 4-7; it in force, than in a direct proceeding 2 lb. pp. 8, 18. SECT. lY.] JUDGMENTS IN PERSONAM. 219 • ment,^ or where there is any similar transaction at the trial between the other parties to the cause, in the way of * circum- vention/ against such rights, there, it is apprehended, is fraud such as may justify an impeachment of the judgment collaterally even upon the footing that the judgment is only voidable. In this position will be found the case of a judgment * concocted ' (to use a common term) in fraud at the trial, a judgment entered against one's rights through the treachery of one's counsel known to the other side,' a judgment taken after a valid compromise of the cause, or after payment of the demand, and a collusive judgment." In regard to the third question proposed, the circumstances under which impeachment collaterally is to be allowed, it is to be said that so far as the question is an open one, and it may be in some states, it may well be doubted whether judgment, while it may still be made the subject of a proceeding to destroy it, should be collaterally impeachable on grounds of fraud not touch- ing the jurisdiction of the court* If the time for proceeding against it has passed, without fault of the injured party, that, and that only, should make a different case.^ So, if a case arise such as that referred to in Bandbn t?. Becher, in which the judg- ment is no judgment at all because of fraud, the fact may doubt- lessly be shown in any collateral proceeding at any time. Judgments of inferior courts may no doubt be impeached for fraud of the kind sufficient in cases of judgment of a superior court, at all events in cases where no appeal lies,^ and possibly in other casesJ ^ As to what is meant here by Thompsoii's Appeal, 57 Penn. St. 175; 'rights,' see note, p. 218. snpra, p. 216, note 9. < See Hunt v, Blackbarn, 128 U. S. ^ Comp. Nougue v. Clapp, 101 U. S. 464, where the alle^ged misconduct of 551; Graham v. Boston R. Co., 118 counsel was not proved. U. S. 161 ; Meadows v. Duchess of ' Hence the significance of cases re- Kingston, Amb. 756; ante, p. 210, note, lating to decrees of divorce, in which it * Ibid. is said that fraud is not enough to avoid ^ Gumsey v, Edwards, 26 N. H. 224; them ; collusion must be shown. Med- Bobbins v, Bridgewater, 6 N. H. 524 ; dowcroft V. Huguenin, 4 Moore, P. C. Gear v. Smith, 9 N. H. 68 ; Sanborn v, 886. See Perry v, Meddowcroft, 10 Fellows, 22 N. H. 478 ; Harlow v. Pike, Beav. 122 ; Duchess of Kingston's Case, 8 Greenl. 488. ante, p. 218; post, p. 229, note 2; 7 SeeMcFeeleyt?.Scott,128Ma^. 16, 220 ESTOPPEL BT RECORD. [CHAP. m. The estoppel in any case, however, precludes only an impeachr ment of the judgment ; and there is ground for a distinction between the case of a judgment obtained by perjured evidence and the case of a judgment regularly obtained but based upon a cause of action to which a defence of fraud might have been made. If, for example, judgment by default were obtained upon a contract, it might well be that the defendant could afterwards sue for fraud committed in the contract ; for this would not be inconsistent with the judgment, as we have elsewhere suggested.^ The same would be true of judgment in a contested cause, if no question of fraud was actually raised. The judgment afiSrms the contract indeed ; but the party defrauded may also do this, and still sue for the deceit practised upon him.^ 18. But that refers to fraad in regard with approval by the Supreme Conrt of to jurisdiction. See ante, p. 208. the United States. Cromwell v. Sac, 94 ^ Ante, p. 186. And comp. pp. 174- U. 8. 351, 857* Can there be an estop- 186. See especiaUy Hunt v. Brown, pel in this case any farther than there 146 Mass. 253, 255 ; Howlett v. Tarte, is when there is a default without plea? 10 C. B. N. 8. 818, 827, 828 ; Cromwell ^ See 1 Bigelow, Fraud, 71, 72 ; V. Sac, 94 U. S. 351, 857. Wanzer v. De Baun, 1 £. D. Smith, Perhaps judgment by default after 261; Michigan v. Phoenix Bank, 33 issue joined, without other contest by N. T. 9, 25 ; Cadaval v. Collins, 4 Ad. the defendant, deserres consideration by & £. 858 ; Whitaker v. Merrill, 28 the courts in regard to the effect of the Barb. 526 ; Jackson v. Snromerville, 18 judgment. See Howlett v, Tarte, 10 Penn. St. 359 ; Homer v. Fish, 1 Pick. C. B. N. s. 818. The language of that 485. case is very striking, and has been quoted CHAP. IT.] JUDGMENTS IN B£M. 221 CHAPTER IV. JUDGMENTS IN REBL We proceed now to the consideration of those judgments which avail against all persons, to wit, judgments in rem ; the general distinction between which and the class just under consideration and the grounds, such as appear, upon which the distinction rests, have been pointed out on preceding pages.^ Most of the questions relating to this division of res judicata, 80 far as the subject of this work is concerned, are common with those relating, to judgments in personam of the domestic courts, and to foreign judgments in rem. The latter, as we shall see, stand substantially upon the same footing with the present class of judgments, with certain exceptions to be noticed hereafter. In this connection we shall, therefore, consider only the general lines of this class of estoppels ; referring the reader to the chapters mentioned for further details. The one established case* of the full operation of a judg- ment in rem is an adjudication of prize, or an acquittal thereof,' in the Admiralty ; it has often been determined that condem- nations are conclusive upon all persons, not only of the title or change of property, but also of the findings of necessary facts upon which the condemnation was pronounced.* And this has been held to be true not only for the purposes of the judgment itself, but also for collateral purposes, such as questions turning upon a warranty of neutrality of a ship in a contract of insurance ^ Ante, pp. 43 et seq. * Concha o. Concha, 11 App. Cas. * Ante, p. 47 ; poet, p. 24S. 541 ; 8. c. in the Court of Appeal, nom. • Cashing v. Laird, 107 U. S. 69, De Mora v. Concha, 29 Ch. D. 268 ; 80 ; The Apollon, 9 Wheat 862. The Hughes v, Cornelius, 2 Show. 232 ; s. c. decree of acquittal does not decide the Ld. Raym. 478 ; Skin. 59 ; Garth. 82 ; title of any particular person, unless Croudson v. Leonard, 4 Cranch, 434 ; conflicting claims are presented and Bradstreet v. Neptune Ins. Co., 8 Sum. passed upon. Cushing v. Laird, supra. 600. 222 ESTOPPEL BT RECORD. [CHAP. IV. upon her, where the ship has been seized, condemned, and sold for breach of such neutrality.^ Questions of the conclusiveness of sentences of this character have generally arisen in relation to the adjudications of foreign courts ; and the subject wiU be fully considered in its appropriate place.^ Cases of adjudication in the Court of Admiralty in matters of collision have also been thought to afford an illustration of the operation of judgments in rem. In a recent case ^ it was held in an action upon a policy of insurance for a loss by collision at sea that a decree of the Admiralty that the collision had been caused by the negligence of the vessel insured was conclusive of the fact ; and the insurers were exonerated from indemnifica- tion for the damages which the owners of the vessel insured had been compelled to pay, by reason of their negligence, to the owners of the other vessel The court said that the only evi- dence there was of the collision, and of its attendant circum- stances, was the transcript of the proceedings of the District Court ; but that was sufficient It showed the judgment of a court of competent jurisdiction proceeding in rem ; and such judgment was binding on all persons interested in the thing upon which the process was served. Insurers, as persons hav- ing an interest in the thing arrested and made the subject of adjudication, were bound even by the sentence of a foreign prize courts and much more so by the decree of the Admiralty.at 1 Croudson v. Leonard, 4 Cnincli« (breach of blockade) was held, as matter 434. See Cashing v. Laird, 107 U. S. of law, not to have been made out ; the 69, 80. The effect of Concha v. Concha, record indicating on its face that the supra, especially in the Conrt of Appeal, court had reached an erroneous decision, is, however, to throw some doubt upon This is the only ground of distinction the soundness of the rule ; and the same between that case and Croudson v. doubt is raised by the effect of Brigham Leonard. But that distinction would V, Fayerweather, 140 Mass. 411. But now be held unsound ; it makes no dif- neither of those cases was an admiralty ference that the record shows that the case. court made an erroneous decision in Croudson v. Leonard appears in point of law. See Godard o. Gray, L. reality to be inconsistent with the prior B. 6 Q. B. 139 ; post, p. 262. decision of the same court in Fitzsira- Both Croud5K>n v. Leonard and Fitz- iiions V. Newport lus. Co., 4 Cranch, simmnns v. Newport Ins. Co. are cases 185 ; but it does not profess to overrule touching foreign judgments, it. The fact upon which the condem- • Under Foreign Judgments in Rem. nation under consideration in Fitzsim- * Street v. Augusta Ins. Co., 12 mons V. Newport Ins. Co. proceeded Rich. 13. CHAP. IT.] JUDGMENTS IN REM. 223 home. The court further said that the case was not changed by reason of the fact that the vessel had been delivered to the present plaintiffs claiming as owners under their stipulation. This fact did not convert the case into a proceeding in personam. The stipulation was a substitute for the vessel ; and the decree was made, not against the persons, but against the vessel But the doctrine of this case is not consistent witli other decisions, and needs further consideration.^ There has been much discussion of the question, what consti- tutes a judgment id rem by the English law.^ The cose of Hart *v. McNamara' has been thought to show the line of distinction between judgments in rem and in personam, in municipal causes before the late Court of Exchequer. It was an action for the price of liquor sold by the plaintiff. The defence was that the liquor was adulterated. To prove the adulteration the record of condemnation of the rum was offered in evidence ; and to connect the plaintiffs with the cause of c9ndemnation a record was offered in evidence of proceedings by the Grown against the defendant for penalties, in which the defendant was convicted. Chief Justice Gibbs held that the record of condemnation was admissible, being in rem ; but he refused to admit the record of conviction for penalties, stating that as it was in personam it was not evidence in any case where the parties were different. But doubt has been thrown upon the authority of this case, so far as relate^ to the effect of any finding as distinguished from the judgment itself and the title derived from it.^ The distinc- ^ New England Ins. Co. v, Dunham, a precedent clearly, bnt not as res jndi- I Lowell, 258 ; 8. c. 8 Cliff. 832. And cata. See Stryker v. Goodnow, 123 conip. Brigham v. Fayerweather, 140 U. S. 527, 538, 539; Chapman v. Good- Mass. 411 ; Concha v. Concha, 11 App. now, ib. 540 ; Litchfield v, Goodnow, Cas. 541 ; s. c. nom. De Mora v. Con- ib. 549. cha, 29 Ch. D. 268. A jodge will, in- * Ante, p. 45. See also Simpson v, deed, be very apt to use his finding in a Fogo, 29 L. J. Ch. 657 ; s. c. 82 L. J. collision case in another case i)endingat Ch. 249, and 1 Hem. & M. 195 ; Cam- the same time in regard to the same mell v. Sewell, 8 Hurl. & N. 617; s. c. 5 collision, though the parties are not the Hurl. & N. 728 ; Castrique v. Imrie, same ; as was done in Levi v. New L. K. 4 H. L. 414, 427. Orleans Ins. Assoc., 2 Woods, 68. But * Reported in note, 4 Price, 154. whether a judge would do this against ^ De Mora v. Concha, 29 Ch. D. 268. objection based upon an offer to produce See 8. c. nom. Concha v. Concha, 11 evidence not before him in the other case, App. Cas. 541. See also Brigham v. quaere ? He could use the judgment as Fayerweather, 140 Mass. 411. Hart v. 224 ESTOPPSL BT SEOOBD. [CHAP. IT. tion between the two classes of judgments bas become less im- portant since the late decisions, which have reduced the number of judgments in rem in regard to findings and grounds appar- ently to one.^ The tost in r^^ard to the question whether a judgment itself operates in rem, that is, whether the right, title, or status is available generally, appears to be, as we have else- where seen,^ whether (1) all persons were prop^ly made parties, or (2) whether the cause was tried between those who had the exclusive right to try it* That the record of condemnation of goods in the Exchequer, as a title or as a justification of acts done under it, is conclusive* upon all persons was determined as long ago as in the year 1775, in Scott v. Shearman.^ This case was an action of tres- pass against custom-house officers (ex entering the plaintiflTs house and seizing his goods. The defendants justified under a record of condemnation in the Exchequer. The cause was twice argued, and underwent great examination. Counsel contended that the condemnation was only conclusive of the right of the Crown to the goods, but not conclusive in case the owner could prove that in point of fact they were not seizable and should choose to bring an action against the person seizing for damages by way of collateral remedy. And Mr. Justice Blackstone and all the other judges decided that the action could not be maintained.^ McNamara is supported by Magonn v, is that the goods were not in truth lia- New Eng. Ins. Co., 1 Storv, 157. But ble to be seized by the laws of the cua- see Carrington v. Merchants' Ins. Co., toma; altliough by the plaintiff's de- 8 Peters, 495. Both were revenue cases, fault they have been condemned in the There can be no real distinction between Exchequer. But I take this condem- revenue and prize cases ; but the latter nation to be conclusive evidence to aU are now considered, so far as established the world that the goods were liable to in regard to findings, as eiLceptions. be seized, and that therefore this action 1 Ante, p. 47 ; post, p. 243 ; De Mora will not lie. 1. Because of the implicit «. Concha, 29 Ch. D. 268 ; Brigham v, credit which the law gives to any judg- Fayerweather, 140 Mass. 411. men tin a court of record having com« 3 Ante, p. 47. petent jurisdiction of the subject-mat- B Candee v. Lord, 2 Comst. 269; ante, ter ; the jurisdiction in this case of the p. 150. Court of Exchequer is not only compe- ^ 2 W. Black. 977. tent, but sole and exclusive. And ^ * The only possible ground,' said though it be said that no notice is given the learned judge above named, ' that to the owner in person and that there- the plaintiff can rely on in the present fore he is not bound by the condemna- case, which is unaccompanied with mis- tion, not being a party to the suit, yet behavior or any unwarrantable violence, the seizure itself is notice to the owner. CHAP. lY.] JUDGMEliyB IH WBM. 225 Mr. Chancellor Kent, in Gelston v. Hoyt,^ referring to this case, CMtye that the law is settded (dearly and definitely, that if goods be seized by a custom-house officer, and are libelled, tried, and condemned in the Exchequer, District Court, or other couit having cognizance of the forfeiture, trespass will not lie against the officer who seized the goods. But the great question in the case before Chancellor Kent was whether, in case of an acquittal of the goods, the officer when sued for the seizure could contest the legality of the seizure again. And he held that be could not, for reasons stated in the note.^ who is presumed to know whatever be- For the condemnation has a retrospect oomee of his own goods. He knew they and relation backwards to the time of were seized by a revenae officer ; he the seizure, (a) The spirituous liijnora knew they were carried to the king's that were seised were therefore at the warehouse ; he knew, or might have time of the seizure the goods and chat- known, that by the course of law the tels of his Majesty, and not of the plain- validity of that seizure would come on tiff, as in his declaration he has necessa- to be examined in the Court of Excheq- rily declared them to be ; since neither ner, and could be examined nowhere trespass nor trover will lie for taking of else. He had notice by the two procla- goods unless at the time of the taking mations, according to ^e course of that the property was in the plaintiff.' eourt. He had notice by the writ of ^18 Johns. 561, 583. appraisement, which must be publicly ' 'I entertain no doubt,' said the executed on the spot where the goods Chancellor, *it is equally well settled were detained. And having neglected as the other, and that if the condemna- this opportunity of putting in his claim tion is a bar to the action, on the one and trying the point of forfeiture, it was hand, the acquittal is a bar to the de- his own laches, and he shall be forever fence, on the other. It would be mon- concluded by it, not only with respect stronsly unjust and repagnant to all to the goods themselves, but every other principles, if the mle were not so. ooUaterel remedy for taking them. For Ought not the parties to be placed upon it would be nugatory to debar him from equal ground ? And if the sentence of recovering directly the identical goods condemnation be conclusive in favor of that are condemned, if he is allowed to the seizing officer, ought not the sen- recover obliquely damages equivalent to tence of acquittal to be conclusive their value. 2. Because the property against him ? The most obvious dic- of the goods being changed and irrevo- tates of justice will teach every man of cably vested in the Crown by the jndg- common understanding that the rule, ment of condemnation (as is clear be- to be just, should be equal and impar- yond any dispute, and conceded on the tial in its operation.' He then proceeds part of the plaintiff), it follows, as a to state that the authorities are on the necessary consctquence, that neither same side (12 Viner« 95, A. b. 22, 1; trespass nor trover can be maintained Cook v, ShoU, 5 T. R. 255), with one for taking them in an orderly manner, exception. BuUer N. P. 245. ' The (a) The record of condemnation is conclusive, not only that the goods were liable to seizure at the time of the sentenoe, but also that they were so liable at the time they were imported. Whitney v, Walsh, 1 Cush. 29. 15 226 ESTOPPiSL. BT RECOlU). [CHAP. IT. The foregoiDg case of Gelston v. Hoyt was taken to the Supreme Court of the United States, and the judgment was there aflBnned.^ Mr. Justice Story, who delivered the opinion, referring to the passage from Buller, said that though it might be good law in respect to criminal suits, it had no application to proceedings in rem. Where property, he observed, was seized and libelled as forfeited to the government, the sole object of the suit was to ascertain whether the seizure were rightful, and the forfeiture incurred or not The decree of the court in such case acted upon the thing itself, and bound the interest of all the world, whether any party actually appeared or not If it was condemned, the title of the property was completely changed, and the new title acquired by the forfeiture travelled with the thing in all its future progress. If, on the other hand, it was acquitted, the taint of forfeiture was completely removed, and could not be reannexed to it The original owner stood upon his title discharged of any latent claims with which the supposed forfeiture might have previously infected it A sen- tence of acquittal in rem therefore ascertained a fact as much as a reason,' he goes on to say, 'assigned in not forfeited. Indeed, in the next pre- BuUer's N. P. why an acquittal is not ceding page in Bailer an adjudged case conclusive in a collateral action, as well is given which completely overturns his as a condemnation, is that an acquittal distinction. It is the case of Lane v. ascertains no fadf as a conviction does. Degberg, Buller N. P. 244, decided in This is the reason assigned. Thus, it is 11 W. 8, prior to the decision hefore said, if a party be indicted for bigamy Baron Price. 12 Yiner, 95, A. b. 22, 1, and convicted, it must have been a full supra. It was an action by a soldier T>roof that he was twice married, and against his oflScer for an assault and could not have been on any other battery. The officer justified the act as ground ; but if he was acquitted it done in the army for disobedience, and might have been because he had reason gave in evidence the sentence of a coun- to believe his first wife was dead, though cil of war founded on a petition of the she was not dead ; or it might have plaintiff against him ; and the acquittal, been for many other reasons, without being the sentence of a court of ezdu- supposing the second to have been a sive jurisdiction in a case arising under lawful marriage. All this may be true martial law, was held to be conclusive in that and like cases ; but in a case in evidence for the officer in the action for the Exchequer, where the goods are the assault and battery.' themselves seized and libelled as for- ^ 8 Wheat. 246, dted and approved felted to the government, and which is in Coffey v. United States, 116 U. S. termed a proceeding in rem, the question 486, 444 ; Williams v. Suffolk Ins. Co., of forfeiture is the only question that 8 Sum. 270, 275. See also Magoun can be made ; and a decree of acquittal v. New Eng. Ins. Co., 1 Story, 157 ; does ascertain the fact that they were 81ooum v, Mayberry, 2 Wheat. 1. CHAP. lY.] JUDGMENTS IN RSM. 227 Bentence of cond^mnatioo ; it ascertained and fixed the fact that the property was not liable to the asserted claim of forfeiture. A decree establishing a person's pedigree is, perhaps, in estab- lishing a title or a right, of hke conclusive character ; so it was decided in the case of £nnis v, Smith.^ The action was brought against the administrator of the estate of General Kosciusko by persons claiming to be his heirs. To prove their relationship they produced decrees of their family pedigree by the Court of Nobility of Grodno, and another of the Court of Kobryn, in the Russian province of Lithuania. The jurisdiction of these coiirts having been proved, the Supreme Court of the United States held that the proceedings were in rem and evidence against all the world of the matters of pedigree adjudicated. However, a decree upon the legitimacy of a child cannot, under the laws of Maryland (even if it could by the common law anywhere), be used to establish the question of the legitimacy of other children by the same connection ; and this too though the decree was entered only after an issue directed to ascertain whether the father was ever lawfully married to the admitted mother of the children.^ But the decree in regard to the particular child would probably be conclusive against all the world.^ That decrees or sentences in divorce cases, in distinction from the specific necessary findings therein and grounds thereof, also belong to this class is well settled.^ In Hood v. Hood^ the plaintifT brought a writ of dower against the defendant, who claimed under an assignee in bankruptcy of the plaintiff's late husband. The defendant offered in evidence a decree of divorce 1 14 How. 400. See Pittapur v. Mass. 463 ; Burlen v. Shannon, 8 Gray, Garn, L. R. 12 Ind. App. 16, where an 887, 389 ; s..c. 99 Mass. 200 ; Smith ottempt was unsnccessfully made to v. Smith, 18 Gray, 209, 210. See Perry raise a question of consanguinity, de- v. Meddowcroft, 10 Beav. 122 ; Med- cided in a different sort of suit between dowcroft v. Huguenin, 4 Moore, P. C. the same parties. 886 ; Bunting v. LepingweU, 4 Coke, 29 ; 3 Kearney v. Dean, 15 Wall. 51 ; Bobins v. Crutchley, 2 Wils. 122, 127. Blackburn v. Crawfords, 8 Wall. 175. Questions relating to the conclusiveness * Banting v. LepingweU, 4 Coke, of decrees in cases of marriage and di- 29, commonly cited as Bunting's Case, vorce have more frequently arisen in cases See 2 Wils. 123 ; Duchess of Kingston's of foreign decrees ; and the reader is re« Case, Everest & Strode, £st. 424. And ferred to the chapter on Foreign Judg- see the laat-citfd work, p. 89. ments in Bern for further information. « Hood V. Hood, 11 Allen, 196 ; 110 « 110 Mass. 463. 228 ESTOPPEL BT RECOBD. [CHAP. I^. obtained by the husband in Illinois, on the ground of desertion, and also a decree in Massachusetts * dismissing a libel by the present plaintiff for divorce, which was found, under evidence held admissible, to have been rendered on the ground that the decree of the Illinois court was valid and binding. The present plaintiff now offered evidence to show that the Illinois decree was obtained by fraud, and this was received in the lower court ; but the Supreme Court held that the case was concluded by the decree dismissing the wife's libel, and reversed the decision below. The court declared, after looking into the ground upon which its own former decree was based, that the effect of the judgment was to determine the status of the present plaintiff, and in that respect, and to that extent, concluded all the world It is not to be inferred from the fact that the court in Hood V. Hood looked into the ground of its former decree that a finding, as distinguished from the decree, would operate against all persons. The court only desired to know whether its for- mer decree dismissing the wife's libel was rendered upon the merits or not. Besides, there had been no finding in Illinois in regard to fraud ; there was no appearance there by the wife. Indeed, the language of the court in Hood v. Hood, as given above, clearly indicates that only the decree operates in rem, as must have been the case without overruling what had already been decided.^ Thus, in Burlen v. Shannon it is laid down that in an action for the board of the defendant's wife a decree dis- missing for want of proof a libel for divorce by her, alleging extreme cruelty which compelled her to leave him, was not con- clusive that she had left her husband unjustifiably. So too it is held in Rhode Island that a decree dismissing a husband's peti- tion for divorce for adultery by the wife did not estop him to show, in defence of an action against him for necessaries by a third person, that she had committed adultery,^ And even in regard to the decree itself fixing, as it is commonly put, the 1 11 Allen, 196. 688, where, in a similar case, there * Burlen v. Shannon, 8 Gray, 887, had been no decree of divorce becaose 889 ; Smith v. Smith, 18 Gray, 209, both parties had been found guilty of 210. adultery. The finding was held no * Gill 9. Bead, 5 R. I. 848. See estoppel. Needham v. Bremner, L. B. 1 C. P. CHAP, nr.] JUDGMENTS IN BEM. 229 status of the parties,^ it is held that a child en ventre sa m^e at the time may show that the decree was obtained by collusion between the parties.^ Whether a third person could have the benefit of one of our statutes against divorces fraudulently obtained does not appear to have been decided. The decrees of the Court of Probate and of like courts upon the testamentary character of instruments, and upon the title derived from a grant of letters of administration and like acts' 1 Indeed^ it has been decided upon See Everest k Strode, Estoppel, S4 ; great consideration that a deeree of di- ante, p. 92, note, vome for desertion is not conclusive, The Duchess of Kingston's Case con- hetween the wife and a stranger, of the tains in the arguments and opinion a lawful nkarriage of the parties to the review of nearly aU the early cases, to divorce cause, in a case not contested, wit : Jones v. Bow, Garth. 225; Bunting 'Williams v. Williams, 63 Wis. 58. v, Lepingwell, 2 Coke, 855, and 4 Coke, This was on the ground that the ques- 29 ; Kenn's Case, 4 Coke, 186 ; Black- tion of marriage would not be much ham's Case, 1 Salk. 290 ; Hatfield v. considered in such a case. Besides, by Hatfield, 5 Brown's Pari. Cas. 100 the laws of Wisconsin an ordinary de- (cited in Da Costa v. Villa Real, 2 cree of divorce was held not to have Strange, 960) ; Clews v. Bathurst, 2 the same effect as a decree in an action Strange, 960, and Cas. temp. Hardw. for affirmance or annulment of marriage. 11 ; Da Costa v. Villa Real, supra ; Noel Ibid. V. Wells, 1 Lev. 285 (cited 1 Ld. Raym. * Meddowcroft v. Huguenin, 4 Moore 262) ; Bransby v. Kerridge, 1 P. Wmt. P. C. 386. See Perry v. Meddowcroft, 548 ; Hughes p. Cornelius, 2 Show. 232 ; 10 Beav. 122. Fraud not amounting to Burrows v. Jemino, 2 Strange, 788 ; ooUusion was in the first case held to Philips v. Bury, 2 T. R. 846 ; Biddulph be insufficient ground to impeach the v. Ather, 2 Wils. 23 ; Rex v. Vincent, judgment. The Duchess of Kingston's 1 Strange, 481 ; Rex r. Gnindon, 1 Case, ante, p. 91, Everest k Strode, Cowp. 815 ; Morris v. Webber, Moore, Estoppel, App. B, so much cited, was 225 ; Corbet's Case, cited 4 Coke, 140 ; an indictment for bigamy, to which the Millisent v. Millisent, cited Cas. temp, defendant pleaded a sentence of the £c- Hardw. 11 ; Rex v. Rhodes, 2 Strange, desiastical Court in her favor, in a suit 708 ; Boyle v. Boyle, 8 Mod. 164 ; Wtsbb for jactitation of marriage, i. e. claiming v. Cook, Cro. Jac. 585 and 625 ; Furs- aad boasting of a marriage with her, man v, Fursman (no report named) ; against A H. The House of Lords Robins «. Cmtchley, 2 Wils. 118 ; held that the sentence was not condu- Roach v, Garvan, 1 Vss. 157 ; Uoid v. sive against the Crown, but in any event Maddox, Moore, 917 ; Prudham v, Phil- that it might be impeached for fraud lips, 2 Amb. 762, and other cases, and collusion. Formerly decrees of di- * Not upon orders of distribution, vorce themselves in the Ecclesiastical Ruth v. Oberbrunner, 40 Wis. 238 ; Court were not conclusive even between Bresee v. 8tlles, 22 Whs. 120. And of the parties. Oughton, Ordo Judic. 28, course the settlement of accounts in tit. 14 ; ib. p. 806, }§ 3, 4 ; Bracton, probate by executors or administrators 804 ; Robins v. Crutch ley, 2 Wils. binds those only who are really made 122, 127. And jadgments in suits for parties. Bntterfield v. Smith, 101 U. S. jactitation do not stand upon the foot- 570 ; Ritchey v. Withers, 72 Mo. 556. ing of decrees of or against divoit:e. Further, of the effect of decrees in pro- 230 ESTOPPEL BT BEOORD. [CHAP. IT. are also conclusive, when acting within its jurisdiction, upon all persons.^ Thus, the decree of probate admitting a will to record conclusively establishes against all persons the fact that the will was executed according to the law of the country in which the testator was domiciled, though it does not so establish his domicil,' even if the fact was found.^ The finding of such fact is not necessary to the probate of a will.^ In establishing the testamentary character of an instrument offered for probate as a will the decree establishes inter partes, but not inter omnes,^ the capacity of the testator to make it, and inter omnes the genuineness of the instrument.^ It merely establishes the fact towards aU the world that there is nothing to prevent its being admitted to probate as a will, and that it is a valid wilL That it does not establish the testator's mental capacity inter omnes has lately been decided in Brigham v. Fayerweather.7 That was a bill in equity to set aside a mort- gage made by B on the ground that she was of unsound mind when she executed it To show her sanity the defendants offered in evidence the adjudication of the Probate Court allow- ing a will made by her, and also evidence that her mental bate, see Hatcher v. DiUard, 70 Ala. Enohin «. Wylie, 10 H. L. Caa. I, 18, 348 ; Daria Machine Co. r. Barnard, to the effect that the courts of the dom- 48 Mich. 879 ; Yeoman v. Younger, icil have exclusive jurisdiction of the 88 Mo. 424 ; Carver v. Lewis, 104 Ind. administration of personal estate, it 488. is now held that tiie courts of other ^ Plume V. Howard Inst, 46 N. J. countries as well, when occasion arises, Sll ; Lawrence v, Englesby,' 24 Vt 42 ; have jurisdiction. The law of the dom- Farrar v. Olmstead, ib. 128 ; Steeu v. icil governs, but resort may be had to Bennett, ib. 803 ; Loring v. Steineman, the courts of other countries. Lord I Met. 204. See Vaughan v. Suggs, 82 Selbome in Ewing r. Orr Ewing, 10 Ala. 857 ; Nelson v, Boyuton, 54 Ala. App. Cas. 458, 502 ; In re Tmfort, 86 368, 876 ; Deslonde v. Darrington, 29 Ch. D. 600, Stirling, J. And see Ala. 95 ; Lancaster's Appeal, 47 Conn. Concha v. Concha, supra. 248 ; Connolly v. Connolly, 82 Gratt. * Concha v. Concha, supra. 652 ; and the very important cases of * Ibid. Whicker v. Hume, 7 H. L. Cas. 124, * Brigham v. Fayerweather, 140 Mass. De Mora v. Concha, 29 Ch. D. 268, and 411. But see Qoodman v. Winter, 64 Brigham v. Fayerweather, 140 Mass. Ala. 410 ; Williams i% Saunders, 5 Cold. 411. 60, 74, dictum ; Archer v. Mosse, 2 * Whicker v, Hume, 7 H. L. Cas. Yem. 8, only a question of jurisdic- 124 ; De Mora v. Concha, 29 Ch. D. tion, however. 268 ; affirmed nom. Concha v. Concha, * Newman v. Waterman, 68 Wis. II App. Cas. 541. Notwithstanding 612, 626, dictnm, bat clear law. what was said by Lord Westbury in ? 140 Mass. 411. CHAP. lY.] JUDOHRNTB IN BEX. 2S1 capacity was no less when sb^ executed the mortgage than when she executed the will The defendants had not been parties in interest in the probate proceedings. It was held in a strong opinion of the court by Mr. Justice Holmes that the decree was not even admissible evidence upon the point Again, the probate of a will does not establish the fact that the dispositions made therein were not beyond the testator^s power.^ The result, indeed, as has already been stated, is that it is the jvdgme7it of the Probate Court on the will, as distin- guished from specific findings or facts necessarily involved therein, that is binding upon all persons.' And the judgment is conclusive inasmuch as the executor^ who ofiPers the will for probate, is deemed to represent all who claim under the will,' while they and all who claim against it are warned to appear.^ The executor does not, however, represent adverse claimants under the will, in regard to their claims.^ The case of Lawrence v, Englesby, above cited, shows the conclusiveness of title derived under a grant of lettere of admin- istration. That was a petition for appointment as administrator as matter of right ; alleging that the respondent claimed to be administrator of the same estate, but that he had not been legally appointed, that he was not entitled to the position, and that he was an improper person for it In reply the defendant set forth his appointment by a Court of Probate, at the request of certain heirs and next of kin of the intestate, and that no appeal had been taken from the order. The defence was held good. The Supreme Court said that it could not in a collateral way review the correctness or propriety of a decree of a Court of Probate acting within its jurisdiction. Whether the defendant 1 Comp. Ck)Bcha v. Coocba, 11 App. against the other of them. We conceive Ckia. 641 ; a. c. in C. A. ; De Mora v, it to be plain that if a man -appointed Concha, 29 Gh. D. 268. an executor, and after his death a ques- ^ Concha v. Concha, aapra ; Brigham tion arose between the residuary lega- V. Fayerweather, supra. See Williams tee and his next of kin as to whether V. Williams, 68 Wis. 58. there was an intestacy (entire or partial), * Concha v. Concha, supra. the executor would no more represent ^ Ante, p. 48. the residuary legatee than the next of * * Where two litigants both claim kin, because each of these two liti^^ants under a third person, it seems that such would assert that the executor held the third person can never be a " l^timns property in dispute for his benefit.' Ds oontn^ictor" on behalf of one of them Mom v. Concha, at p. 805. Fry, L. J. 2S2 ESiSrOPPEL BT BEOOBD. [CHAP. IT. was a proper person to be appointed administrator, and whether a request by only a part of the next of kin was sufficient to warrant the grant of letters, were questions properly arising llefore the court ; and if the petitioner felt aggrieved, be should have appealed.^ In like manner an adjudication of the domieil, or the confir- mation of an order of removal, of a pauper under the peculiar statutes of England and of some of our states concludes the appellant in favor of all the world.^ In West Buffalo v. Walker^ jiHSt cited, Chief Justice Gibson says that there are three modes •f disposing of an order of removal, each havii^ a different effect in point of conclusiveness. The first is by confirmation, which, as has been stated, is eonclusive in fetvor of strangers ; the second is by discharging the order, in which case the adjudi- Mtion is conclusive only between the parties litigant ; the third is by quashing it, in which case the order is not conclusive upon 1 In the case of Loring p. Steineman, doc^^iiM and reasons apply to proceed- just cited, Shaw, C. J. had occasion to ings in insolvency. Merriam o. Sewall, say : ' In many cases courts of pecnliar 8 Oray, 31 6, 827. Letters of adminis- jwisdiction haye jniisdiction of the trations are considered in eollateral ac* snbject-matter absolutely, and persons tions as not even prima facie evidence are concerned incidentally only, accord- of death or of next of kin, except be- ing to their respective rights and in- tween the parties. De Mora v. Concha, terests ; as in a question of prize the 29 Ch. D. 268, 286, 297 ; Morin v. St» jurisdiction of the Court of Admiralty Paul Ry. Co., 38 Minn. 176 ; Brigham extends to the question whether prize v. Fayerweather, 140 Mass. 411, 415, #r not, and by adjudicating npon that distinguishing several cases, fnestion settles it definitely in regard ^ Rex v. Cirencester, Burr. Sett Gas. to all persons interested in that ques- 18 ; Rex v. Bentley, ib. 426 ; West Baf- tion, whether they have notice or not falo v. Walker, 8 Barr, 177. See Cabot And we think the distiibution of an v. Washington, 41 Vt 168. This is intestate estate is analogous. The sub- not true in Connecticut Bethlehem ject-matter, the property, is within the v. Watertown, 47 Conn. 237. And see jurisdiction of the court and the judg« Renovo v. Half-Moon, 78 Penn. St 301. ment l>y determining who are entitled to This subject has undei^ne searching distributive shares, and extending to the considemtion in the decision of a pro- entire estate, determines that no other bate case, and serious question made |iersons are entitled, and is necessarily whether findings in orders of removal eonclusive because nothing further re- are binding upon strangers except per- nmins to be distributed.' See al$to haps in the same class of cases. De Litchfield v. Cud worth, 15 Pick. 23 ; Mora v. Concha, 29 Ch. D. 268, af- Vanderpoel v. Van Valkenburgh, 6 firmed on appeal nom. Concha v, K. Y. 190 ; Bogardus v. Clark, 4 Paige, Concha, 11 App. Cas. 641. Comp. 623 ; Fry V. Taylor, I Head, 694 ; Cecil also Brigham v. Fayerweather, 140 «. Cecil, 19 Md. 72. And the same Mass. 411. CHAP. lY.] JUDGMENTS IN BEK. 288 any ona An order of removal, the learned Chief Josiioe said, was confirmed afber a unsuccessful objection to it, for want of merits, or for want of form, or for want of regularity ; it was discharged or vacated after a successful objection to it on the merits; and it was quashed for informality or irregularity of proceeding. The order to quash was like a reversal on a writ ot error, leaving the parties where they b^^a^ In like manner also a decree in Louisiana appointing a tutor to a minor, if rendered by a court of competent jurisdiction, can- not be impeached in any collateral action by a debtor of the minor.^ ' So long,' said Mr. Justice Buchanan, ' as tliat judg^ ment stands unreversed it constitutes a full warrant for the d^ mand and collection, by the person therein named as tutor, of debts due to the minor/ A judgment confirming the report of eommissioners appointed to establish the boundary line between adjoining towns, under the statutes of New Hampshire, also concludes all persons.* In the case cited Mr. Justice Sawyer said that it was manifest that great mischief would result if the question, when any doubt arose, should be left in such a state that one jury should be permitted to find one way and another another way as to the boundary. Public interest and the rights of individuals re* quired that the matter be settled by an adjudication that should be final and conclusive upon all the world. But the court further decided that the judgment was equally conclusive upon the question where the boundary had previously been. It was said that to determine what the efiPect of the adjudication since the commencement of the suit was to be, upon the rights of the parties involved in it, it was only necessary to understand the character of the proceeding under the provisions of the statute which declared it final It was not a proceeding relating to private transactions, or a controversy between individuals or particular parties. The adjudication was not directly for the purpose of determining private rights, or of deciding a coutro- 1 See Rex V. Bradenham, Burr. Sett * Snccension of Gorrissoii, 15 La. Cas. S94, concerning which Chief Jus- An. 27. See aim Cailleteau v. Ingonf, tice Gibson says that the ezpresrion 14 La. An. 628. * qnashed on the merits ' was inadver- * Pitman «. Albany, 84 N. H. tently used for ' dischai|;ed.' 577. 2S4 ESTOPPEL BT EECORD. [CHAP. lY. versy between party and party. It related to a subject of pub- lie nature, beyond the rights of litigants, and was strictly a proceeding in rem. Its object was to declare the state, con- dition, or situation of the subject-matter, the true location of the boundary, in a proceeding instituted under the provisions of the law for that object only. In this adjudication it was not merely declared what was to be the recognized and established boundary thereafter ; the judgment pronounced where the true boundary was, as established by the only competent authority to limit and define it, the legislative act In decreeing where the boundary was, as thus established, it was necessarily declared also where it always had been, since the proper power was exer^ dsed in establishiug it by the legislative act, or by the grant from the king if established during the colonial history; and also where it always would be until altered by like competent authority. We have already adverted to the fact that proceedings in at- tachment, replevin, and the like, are not properly proceedings in rem, though they are sometimes spoken of as such.^ The point has been judicially determined in several cases, as we have seen, that those proceedings affect only the actual parties to the litiga- tion, and those who claim through them.^ A distinction may be noticed between those' judgments which incidentally establish reputation, custom, a public ferry, and mat- ters of the kind, and judgments strictly in rem. The latter bind third persons ; they are conclusive evidence against all the world The former may be evidence against strangers, but they are not conclusive.^ The direct object of the suit in Piui v. Curell, just cited, was to recover tolls ; and though it was necessary to the recovery to establish the existence of the ferry, still it was not necessary to establish a ferry in general. In other words, the object of the suit was to determine the right to tolls as between the plaintiff and the defendant, and not as between the plaintiff 1 Ante, pp. 49, 5^. « Pim v. CiiPell, 6 Meea. & W. 234 ; * Man kin v. Chandler, 2 Brock. 125, Carnarvon v» Villebois, 13 Mees. & W. Marshall, C. J. ; MegM v. Beime, 89 813 ; Neill v. Devonshire, S App. Cas. Penn. St. 50 ; Woodruff v. Taylor, 20 185» 147 ; ante, p. 86, note 6. Vt. 65 ; The Bold Buccleugh» 7 Moore P. C. 267, 282. CHAP. IT.] JUDGMENTS IN REM. 285 and all the world. It was not necessary therefore to examine the question of the existence of the ferry in all possible bearings, but only in its relations to two persons. Moreover, a judgment in rem could not be determined in an action for tolls, though there were a hundred defendants, for the judgment could only be broad enough to bind those very parties. The object of such a suit would be to establish the plaintiff's right to tolls against a certain number of persons ; and the existence of the ferry would be proved merely to establish the right as against them. The point of distinction, then, is that in the cases first mentioned the particular fact has been determined only incidentally and with reference to the rights of certain determinate persons. It has been held under a statutory provision that an unsatis- fied judgment against a vessel is no bar to a suit in personam against the owners for the same cause of action.^ The court in the case cited said that if the action were strictly in rem, it was clear that no judgment could be rendered that could be enforced against any other property belonging to the owner. It was therefore evident that a judgment against the vessel was not even substantially a judgment against the owners, and that consequently the former recovery relied on was no bar to the present action. Dr. Lushington has, however, expressed a con- trary view even in regard to foreign decrees, in a dictum in a recent case.^ 1 Toby.tT. Brown, 6 Eng. 80S. * The Qriefswald, Swabey, 4S0. 236 E8X0PPSL BT BEGOBD. [CHAP. V. CHAPTER V. FOREIGN JUDGMENTS IN REIL We come now to the consideration of Foreign Judgments ; under which general term we include the judgments of foreign countries, of English colonies, and of the sister American states We now reverse the order adopted in the consideration of the judgments of the domestic courts, and enter first into an exami- nation pi the cases relating to foreign judgments in rem, and then of those upon the other and more extensive division, call- ing the reader's attention at the same time to what has been said in the chapter on Bes Judicata in regard to the general nature of judgments in rem, and the reasons, such as have from time to time been advanced^ why they are deemed conclusive against all persons.^ The same reason has prevailed for the order mentioned which led to the order adopted in the preceding chapters, namely, the fact that in an historical point of view the division first pre- sented in each case first appeared in the conclusive character of an estoppel. It is quite probable that, merely as adjudications, judgments in personam appeared first in both cases ; but as con- clusive evidence it was otherwise in the case of foreign judgments, as will presently be seen. First, then, concerning foreign judgments in rem. Such judg- ments have from early times been received with great respect both in the courts of England and in those of America, in strong contrast in many instances to. the consideration shown to foreign judgments in personam. As long ago as in the year 1781 Lord Mansfield declared that the sentence of condemnation of a ves- sel by a French Court of Admiralty was conclusive (if the court had jurisdiction) and could not be collaterally impeached ; that ^ Ante, pp. 43 et seq. CHAP, v.] F(»ET6N JUDGMENTS IN REM. 287 it eould only be called in qnedtion by a proceeding in appeal ; ^ ot*, he might perhaps have added, by a direct proceeding instituted for the purpose of setting it asida Only three years before this the same great commercial lawyer had said that a judgment in personam of a court sitting in an English colony was but prima facie evidence of debt, and hence liable to impeachment in Eng- land in a suit upon the same.^ The most familiar illustrations of the rule are to be found in the adjudications of foreign courts of admiralty in matters of prize ; and Hughes v, Cornelius ^ is a leading case of the kind. It was an action of trover for a ship and goods. Upon a special verdict it was found that tbe owner of the ship in question^ and the master, were denizens of England, and that the mate and nearly all the crew were Englishmen ; that the vessel was taken during a war between France and Holland, condemned as a DtUch prize in a French Court of Admiralty, and sold to the plaintifif Hughes nnder the sentence ; that on the arrival of the vessel in England the defendant Cornelius and others, the ser- vants of the former master, took and converted her to their own nse. Upon the production of the sentence of the Admiralty the court refused to allow the verdict to be aigued, but ordered judg- ment to be entered for the plaintiff; for, it was said, the sen- tence of a Court of Admiralty ought to bind generally, according to the law of nations, notwithstanding the fact that the verdict bad falsified the sentence in respect of the nationality of the vessel The language of the court was that ' as we are to take notice of a sentence of the Admiralty here, so ought we of those abroad, in other nations ; and we must not let them at large again, for otherwise the merchants would be in a pleasant con- dition. For suppose* a decree here in the Exchequer, and the goods happen to be carried into another nation, should the courts abroad unravel this ? It is but agreeable with the law of nations that we should take notice and approve of the laws of their coun- * Bernardi v. Motteux, 2 Dong. 574. * Walker v. Witter, 1 Dong. 1. See Bolton v, Gladstone, 5 East, 155, * 2 Show. 282; 8. c. Garth. 82 ; Skin. 160 ; Lothian v. Henderson, 8 Bos. k 59 ; 2 Ld. Raym. S98, 935 ; T. Raym. P. 499 ; De Mora v. Concha, 29 Ch. D. 478. 268, 801, affirmed on appeal nom. Con- cha V, Concha, 11 App. Cbb. 541. 288 ESTOPPEL BT RECORD. [CHAP. V. tries in such particulars. If you are aggrieved, 70a must apply yourself to the king and council ; it being a matter of govern- ment, he will recommend it to his liege ambassador if he see cause ; and if not remedied, he may grant letters of manque and reprisal' It is often said that the courts of England in adopting the rule in Hughes v, Cornelius, and the courts of America in fol- lowing the same, have been actuated by motives of comity. But it has been more satisfactorily declared that the true gi*ound upon which effect is given to a foreign judgment in ftivor of the plaintiff is that of legal obligation, as in the case of domestic judgments.^ That a similar view might be entertained of all rights acquired by virtue of a fcareign judgment, whatever the nature of such rights, is assuredly within reason.^ And to such rights would attach, inter partes or inter omi^s .according to the paiticular case, all findings necessary to their existence. Indeed, there can be no ground for difference in the treatment, as mat- ter of legal obligation, of contracts made abroad and judgments (whether in rem or in personam) pronounced abroad. When jurisdiction has been properly acquired, the law of the land under which it has been acquired should be deemed the law of all the proceedings in the cause, so as to make the judgment and findings everywhere binding. This conclusive effect accorded the judgments of foreign tribu- nals proceeding in rem has been extended to cases of capture and judicial sale in Algiers.^ The case cited was of a British ship 1 See Godard v. Gray, L. R. 6 Q. B. silloii v. Ronsillon, 14 Ch. D. B51, S70, 139, 148, where it is said that foreign and in Schibsby v. Westenholz, L. R. judgments are enforced in England upon 6 Q. B. 155. See also Russell v, Smyth, the principle thus stated by Parke, B. 9 Mees. & W. 610, 819, Nouvion o. in Williams v. Jones, IS Mees. & W. Freeman, 37 Ch. D. 244, 256, Lindley, 628, 633 : * Where a court of compe- L. J. It surely cannot be from motives tent jurisdiction has adjudicated a cer- of comity that the courts of England tain sum to be due from one person to enforce the judgments of French courts, another, a legal obligation arises to pay when the latter refuse to do likewise that sum, on which an action of debt with the judgments of English courts, to enforce the judgment may be main- ^ Upon the doctrine of comity in tained. It is in this way that the jadg- regard to foreign judgments, see the ments of foreign and colonial courts are able treatise of Mr. Piggott on Foreign supported and enforced.' This passage Judgments (London, 1879, 1881). is quoted with approval again in Bou- * The Helena, 4 Ch. Bob. 8. CHAP. T.] FOREIGN JT7DGBCENTB IN REM. 289 which had been captured by an Algerine corsair and sold by the Dey of Algiers to a merchant of Minorca, and by him sold to the present holder. Upon the arrival of the ship in English waters a warrant was applied for by the former owner to arrest the ship ; but the court, refusing the warrant, directed a monition to issue calling upon the possessor to show cause why the ship should not he restored to the former owner. It was contended in his behalf that the seizure by the Algerine corsair was not a lawful capture, 80 as to convert the property. But the court held the contrary.^ ^ Sir William Scott, in delivering noble oaks have been felled ; and in judgment, said : ' This ship appears to their srt are become such masters, and have been taken by the Algerines, and to that degree, as to disturb the might- it is argued that the Algerines are to be iest nations on the western empire ; and considered in this act aa pirates ; and though the same is small in bigness, that no legal conversion of property can yet it is great in mischief ; the consid- be derived from jbheir piratical seizure, oration of which put fire into the breast Certain it is that the African states of the aged Louis IX. to bum up this nest were so considered many years ago ; but of wasps, who having equipt out a fleet they have long acquired the character in his way for Palestine, resolved to be- of established governments, with whom siege it ; whereupon a councU of war we have regular treaties, acknowledging being called, the question was whether and confirming to them the relation of the same should be summoned, and car- legal states. So long ago as the time ried it should not ; for it was not fit the of Charles II., MoUoy speaks of them solemn ceremonies of war should be lav- in language which, though sufficiently ished away on a company of thieves and quaint, expresses the true character in pirates. Notwithstanding this Tunis which they were considered in his time.' and Tripoli, and their sister Algier, do He then quotes MoUoy as follows : at this day (though nests of pirates) ob* * Pirates that have reduced themselves tain the right of legation. So that now into a government or state, as those of (though indeed pirates), yet having ac- Algier, Sally, Tripoli, Tunis, and the quired the reputation of a government, like, some do conceive ought not to they cannot properly be esteemed pi- obtain the rights or solemnities of war rates, but enemies.' MoUoy, p. 88, § 4. as other towns or places ; for though Sir WiUiam then proceeds : ' Al- they acknowledge the supremacy of the though their notions of justice to be Porte, yet all the powers of it cannot observed between nations differ from improve on them more than their own those which we entertain, we do not on wills voluntarily consent to. The fa- that account venture to call in question mous Carthage, having yielded to the their public acts. As to the mode of victorious Scipio, did in some respect confiscation which has taken place on continue, and be^n to raise up her this vessel, whether by formal sentence drooping towers till the knowing Cato or not, we must presume it wss regu- gave counsel for the total extirpation ; larly done in their tpay and according nut of the ruins of which arose Tunis, to the established custom of that part,of the revenging ghost of that famous city, the world. That the act of capture and and now what open hostility denied, by condemnation wss not a mere private thieving and piracy continues ; as stink- act of depredation is evident from this ing elders spring from those places where circumstance, that the dey himself sp- 240 ESTOPPEL BY BECOBD. [CHAP. T. The condemnations of foreign admiralty courts in prize cases have also been held conclusive not only for dieir own proper purposes, but for other purposes as well ; the findings of fact for which the property was condemned being held conclusive in all other causes. The case of Croudson v, Leonard ^ affords a good illustration of this rule. It was held in that case that the sen- tence of condemnation of a foreign Court of Admiralty for breach of blockade was conclusive, not merely of the change of property, but also of the breach. It was an action upon a policy of insur- ance containing a warranty that the vessel was neutral property, and therefore bound to conduct not inconsistent with neutrality.^ Mr. Justice Washington stated it to be the well-established law, both of this country and of England, that the sentence of a for- eign court of competent jurisdiction, condemning property on the ground that it was not neutral, is so conclusive of the breach of neutrality that it can never be controverted in any other court of concurrent jurisdiction.^ pean to have been the owner of the again transferred to the present posses- impturing vessel ; at least he intervenes sor under the public sanction of the to gaanmtee the transfer of the ship judge of the Vioe-Admiralty Court of in question to the Spanish purchaser. Minorca.' But in the case of a vessel There might perhaps be cause of con- seized and confiscated in Mexico, by the fiscation according to their notions for record of the proceedings of which it some infringement of the regulations appeared that there was no suitable al- of treaty ; as it Is by the law of treaty legation of an offence in the nature of a only that these nations hold themselves libel, and that there was no statement bound, conceiving (as some other people of facts ex directo upon which the sen- have foolishly imagined) that there is tence professed to be founded, it was no other law of nations but that which held that the sentence was not concln- is derived from positive compact and sive of the cause of seizure and con- convention. Had there been any de* demnation. Bradstreet v. Neptune Ins. mand for justice in that country on the Co., 8 Sura. 600; Sawyer «. Maine part of the owners, and the dcy had re- Ins. Co., 12 Mass. 291. fused to hear their complaints, there ^ 4 Cranch, 434. might perhaps have been something; ^ See also Bradstreet v. Neptune more like a reasonable ground to induce Ins. Co., 8 Sum. 600 ; Peters v, War- this court to look into the transaction, ren Ins. Co., ib. 389 ; Baxter «. New but no such application appears to have Eng. Ins. Co., 6 Mass. 277* been made. The day intervened in the * ' AU the world,' he said, * are par- transaction as legalizing the act. The ties in an admiralty cause. The pro- transfer appears besides to have been ceedings are in rem, but any person passed in a solemn manner before the having an interest in the property may public officer of the Sparish govern- interpose a claim, or may prosecute an ment the Spanish consul ; and in the appeal from the sentence. The insured subsequent instance the property u is emphaticaUy a party, and in every CHAP, y.] i FOREIGN JUDGMENTS IN REM. 241 The courts of England at an early period adopted this expres- sion of the rule in Hughes v. Cornelius, with the qualification that the record should show clearly the ground of the condem- nation.^ And the same doctrine has been held in America;' but the courts of New York hold that, while the sentence of a foreign Court of Admiralty condemning property as good and lawful prize is conclusive indeed to change the property, it is only prima facie evidence of the facts on which the condemna- tion purports to have been founded ; and that these matters may be disproved in a collateral action.^ Some doubt perhaps is left by the recent case of De Mora v. Concha ^ whether Hughes v. instance has an opportunity to contro- tion ? That the vessel was seized whilst vert the alleged grounds of condemna- attempting to break a blockade, in con- ^on by proving, if he can, the neutrality sequence of which she lost her nentral of the property.* Remarking on the character ; and the change of property case of Hughes v. Cornelius, already produced by the sentence of condemna- dted, he said : * The authority of the tion is a consequence of the matter case of Hughes v. Cornelius, the earli- decided, that she was in effect enemy est we meet with as to the conclusive- property. Can the parties to that sen* ness of a foreign sentence, is admitted ; tence be bound by so much of it as but its application to a question arising works a loss of the property, . . . and under a warranty of neutrality between yet be left free to litigate anew, in the insurer and the insured is denied, some other form, the very point de- It is true that in that case the only cided from which this consequence point expressly decided was that the flowed I ' sentence was conclusive as to the change ^ Lothian v, Henderson, 8 Bos. & P. of property effected by the condemna- 499 ; Baring v, Ciagett, ib. 201 ; Fer- tion. But it is obvious that the point nandez v. Da Costa, Park, Ins. 170 ; decided in that case depended, not upon Bernardi v, Motteux, 2 Doug. 574 ; some new principle peculiar to the sen- Bolton v. Gladstone, 5 East, 155 ; tences of foreign courts, but upon the Hobbs v, Henning, 17 C. K. n. 8. 791 ; application of a general rule of law to Dalgleish v. Hodgson, 7 Bing. 495. such sentences. The case, so far as it ^ See Magoun v. New Eng. Ins. Co., goes, places a foreign sentence upon the 1 Story, 157 ; Dempsey v, Ins. Co. of same foundation as the sentence or de-* Penn,, 1 Binn. 299, note ; Baxter 9. cree of an English court acting upon New England Ins. Co., 6 Mass. 277 ; the same subject ; and we have seen Stewart v. Warner, 1 Day, 142. that by the general rule of law the • Durant o. Abendroth, 97 N. Y. latter, if conclusive at all, is so as to 182, 141 ; Ocean Ins. Co. v. Francis, 2 the fact directly decided, as well as to Wend. 64 ; 8. c. 6 Cow. 404 ; Radcliff the change of property produced by the v. United States Ins. Co., 9 Johns, establishment of the fact. Hence, it 277; Vandenheuvel v. United Ins. Co., would seem to follow that if the sen- 2 Johns. Cas. 451 ; Smith v. Williams, tence of a foreign Court of Admiralty 2 Caines's Cas. 110, 118. be conclusive as to the property, it is * 29 Ch. D. 268, affirmed on appeal equally conclusive of the matter or fact by the House of Lords nom. Concha v. directly decided. What is the matter Concha, 11 A pp. Cas. 541, where the decided in the case under considera- case again underwent great examination. 16 242 ESTOPPEL BT REGOftD. [CHAP. V. Cornelius would now be followed in England ^ in regard to the conclusiveness, inter omnes, of findings and grounds of the judg- ment, as distinguished from the judgment itself.^ It is furthermore immaterial that the sentence of condemna- tion was erroneous, or that it was even made under a decree subversive of the law of nations, one, for instance, like the Milan decree, which had been repudiated by the United States govern- ment. An erroneous judgment is binding in collateral actions, according to the better opinion, as we conceive, though the error is apparent from the record.^ Advantage of the error can only be taken in an appellate court. The inquiry, it is laid down, should be : first, whether the subject-matt^ was so situated as to be within the lawful control of the state under the authority of which the court sat ; and secondly, whether the sovereign au- thority of that state has conferred on the court jurisdiction to decide upon the disposition of the property, and the court has acted within its jurisdiction. If these conditions ai*e met, the judgment concludes all the world.^ But if the judgment was contrary to the 'natural principles of justice,* it will be held void, as we shall see.^ ^ And in America there is a sini- Imrie v. Cartriqne, iafnu See further, lar doubt. Brigham vi Fayerweather, post, p. 262. 140 Mass. 411, a case touching de» * Castrique v. Imrie, L. R. 4 H. L. erees in the Court of Probate, but 414, Biackburn, J. veferring {an p. 414) to the present * In the case of Imrie v, Castrique, subject. just cited, there had been an adjudi- * Ante, pp. 228, 224. Oomp. WU- cation in a French admiralty court liams V. WiUiams, 63 Wis. 68, decree against an English ship in regard to of divorce for desertion, not contested, matters over which the English law held not conclusive of msiriage. should have governed, which law, if ' Williams v. Armroyd, 7 Cranch, properly applied, would have resulted 423 ; Imrie v. Castrique, 8 C. B. n. 8. in a different decree. The English law 405. Affirmed, L. R. 4 H. L. 414. See was laid before the French court ; and Richards t^. Barlow, 140 Mass. 218, 221 ; the counsel who sought to impeach the post, pp. 262, 263. Foreign decrees in decree contended that it had been con- admiralty have been impeached, in for- temptuously thrown aside by the court me/ times, in this country, when the in France. Upon this point Cockbum, record has shown that the court camo G. J. said : 'It is alleged that the to an ' erroneous deeiaion in point of French courts have shown a oontemp- law. Fitzsimraons v, Newport Ins. Co.« tuous disregieu^ of the law of England, # Cranch, 185. But such cases would the only law applicable to the case, not now be followed here, it is appre- first, in holding that upon the mere hended, any more than in England, contract of the master for neceRsaries Oodard v. Gray, L. R. • Q. B. ISO ; a chaigt u^on tha vessel follows by CHAP, v.] FOREIGN JUDGMENTS IN REM. 243 Thus fen of the one caae of a pure judgment in rem, con- cluding all the world not only in regard to the judgment itself, but also in regard to all necessary findings and grounds thereof.^ Foreign decrees confirming marriage or granting divorce, when pronounced by courts of competent jurisdiction, are also, in re- gard to the judgment itself, but no further,^ conclusive against the world. Lord Hardwicke, in speaking of a sentence relating to marriage^ which it had been urged was valid by reason of the fact that it had been established by a court in France, is reported to have said : ' It is true that if so it ia conclusive, whether in a foreign court or not, from the law of nations in such cases, operation of law ; secondly, in holding perfect manner, and without the prodac- that no transfer of a veesel could take tion of authority to support a position place while the ship was on her voya^, which to French judges would probably to the prejudice of creditors, or without seem untenable. The court, therefore, BVLch transfer appearing on the ship's too hastily concluded that the law of papers ; propositions which, though in England must be what, according to accordance with the French law, are their view, the law of every mercantile wholly incorrect with reference to the community ought to be. But in de- law of this country. With regard to dding that the transfer of property in the first of these objections it is to be t.he ship could not be made during the observed that the point was never absence of the ship on a voyage so as to raised at all before the civil tribunal of affect the right of third parties, and Havre under the decree of which court that the transfer was invalid because it the sale of the vessel took place. The was not indorsed on the certificate of plaintiff Castrique, so far as we can registr>% the court professed to be act- gather from the account of the pro- ing on the law of England, not to be ceedings contained in the special case, setting up the law of France as over- confined himself to the production of riding it. All that can be said, there- his bill of sale, conceiving that that fore, is that they have misconceived the alone was sufficient to establish his English law, and that the jud^ent right to the ship. The distinction be- was erroneous. But the result of the tween the French law and our own as authorities on this subject clearly es- to the hypothecation of a ship by the tablishes that a judgment in rem of a act of the master does not appear to foreign tribunal, turning on a question have been at all adverted to. It can- of English law, cannot though erroneous not, therefore, be said that the court in be questioned by a court in this country this particular intentionally disregarded any more than if, turning on the law of the law of this country. Upon the the country to which the tribunal be- other point there was no doubt an ex- longed, it had been erroneous with ref- press decision, and one inconsistent erence to the latter.' See Cammell v. with English law. But it does not at Sewell, 5 Hurl. & N. 728 ; Simpson v. all appear that the court set aside the Fogo, 1 Hem. & M. 195 ; 6. c. 9 Jur. law of England as inapplicable ; it sim- N. 8. 403 ; I^ang v. Holbrook, Crabbe, ply misconceived it. The law of Eng- 179 ; post, pp. 262, 263. land put forward by French advocates ^ Ante, pp. 47, 228. was probably expounded in a very iu* ' Ante, pp. 227-229. 244 ' ESTOPPEL BY RECORD. [CHAP. Y. otherwise the rights of mankind would be very precarious and uncertain.' ^ The most serious question in these cases of foreign divorce is generally in respect of the jurisdiction of the court' It needs ^ Roach V. Ganran, 1 Yes. 8r. 158. leas on a marriage celebrated hero in See case cited in Boucher v, Lawsod, England.' See also Scrimshire v. Scrim- Cas. temp. Hardw. 85, 89 ; Kennedy shire, 2 Hagg. Con. 895 ; Connelly v. V. Casailis, 2 Swanst. 826, note ; Bar- Connelly, 2 Eng. L. & £. 570. ' The ien V. Shannon, 99 Mass. 200. But English coorts,' says Mr. Justice Story, this doctrine, though ' firmly held,' to 'seem not to be disposed to admit that u.se the language of Mr. Justice Story any valid sentence of divorce can be (Confl. Laws, § 597), in America and pronounced, in any foreign country, Scotland, has not been fully accepted which shall amount to the dissolution in the courts of England. In the case of a marriage celebrated in England, of Sinclair v, Sinclair, 1 Hagg. Con. between English subjects, at least so 294, the validity of a sentence of di- fiff as such a divorce is to have any vorce pronounced in a foreign country force or operation in England. At the was alleged in bar of proceedings in same time, it may be remarked that the the Ecclesiastical Court. Lord Stowell doctrine so apparently held has under- said : * Something has been said on the gone very elaborate discussions at a very doctrine of law regarding the respect recent period ; and the grounds upon due to foreign judgments ; and un- which it rests have been greatly shaken, doubtedly a sentence of separation, in Warrender «. Warrender, 9 Bligh, 89 ; a proper court, for adultery would be s. o. 2 Clark & F. 488. Story, Confl. entitled to credit and attention in this Laws, § 595. See also ib. §§ 215-230, court. But I think the conclusion is and cases considered ; Dolphin p. Rob- carried too far when it is said that a ins, 7 H. L. Cas. 890 ; Shaw v. Gould, sentence of nullity of marriage is neces- L. R. S H. L. 55. The position has, sarily and universally binding on other however, finally been abandoned that a countries. Adultery and its proofs are foreign court cannot dissolve an English nearly the same in all countries. The marriage. Harvey o. Famie, 6 P. D. validity of marriage, however, must de- 35, 44 ; s. o. 8 App. Cas. 43 ; Story, pend in a great degree on the local Confl. Laws, p. 812, note, 8th ed. In regulations of- the country where it is regaM to the requisites to the jurisdic- celebrated. A sentence of nullity of tion of the courts of one state to pro- marriage, therefore, in the country where nounce a decree of divorce between par- it was solemnized would carry with it ties married in another state, see Kerr great authority in this country. But I v. Kerr, 41 N. Y. 272, and cases infra, am not prepared to say that a judgment ^ Of course the decree can have no of a thiid country on the validity of a binding effect out of the state unless • marriage not within its territories nor the defendant, if not domiciled there, had between subjects of that coun- was served with process within the try would be universally binding. For state, or appeared generally for defence, instance, the marriage alleged by the People v. Baker, 76 N. Y. 78 ; Kinuier husband is a French marriage ; a French v. Kinnier, 45 N. Y. 535 ; Hunt v. judgment on that marriage would have Hunt, 72 N. Y. 217 ; Van Fossen v. been of considerable weight; but it does State, 87 Ohio St. 817 ; Sewall «. Sew- not follow that the judgment of a court all, 122 Mass. 156 ; People v. Dawell, at Brussels on a marriage in France 25 Mich. 247 ; Crane v, Maginnisi 1 would have the same authority, much Gill k J. 468. CHAP, y.] FOREIGN JUDGMENTS IN REM. 245 no citation of authority to show that if the parties were bona fide residents of the state in which the divorce was granted, having their true domicil there, the decree will be respected in other states. But in several of the states statutes have been passed providing in effect that where a party removes to another state or country /?r the purpose of getting such a residence there as to enable him or her to sue for a divorce, no decree granting divorce will be binding; and these statutes have often been enforced.^ Perhaps the same rule would be held by the courts where there was no such statute, on the ground that jurisdiction cannot be acquired by fraud.' It is also establislied both in America and in England that the sentences and decrees of the Probate Courts, within their jurisdiction, upon the admissibility of an instrument to probate, and the title derived from issuance of letters testamentary and of administration, are absolutely unimpeachable in all other courts, whether of law or of equity,' as we have seen to be the case in regard to determinations of the domestic courts. It can- not, therefore, be collaterally shown that another person was ap- pointed executor, or that the will was a forgery.^ The judgment establishes also the fact that the will was executed according to the law of the country in which the testator was domiciled ; but it is not conclusive of the collateral fact of the testator's actual domicil,^ though there was a finding thereon.* Nor does it show, except between the actually litigating or fully represented par- 1 Van Fossen v. State, 87 Ohio St. Bogardns v. Clarke, 1 Ed. Cb. 266 ; S17 ; Smith v. Smith, 18 Gray, 209 ; Dublin v. Chadboume, 16 Mass. 488, Sewall p. Sewall, 122 Mass. 156 ; Load 441 ; Laugbton v, Atkins, 1 Pick. 585 ; V. Lond, 129 Mass. 14« 18 ; Cheever v. Crusoe v. Butler, 86 Miss. 150 ; Town- Wilson, 9 Wall. 108 ; Burlen v. Shan- send v, Moore, 8 Jones, 147 ; Clark v. non, 99 Mass. 200 ; Story, Confl. Laws, Dew, 1 Buss. & M. 108 ; Montgomery p. 808, note, 8th ed. v. Clark, 2 Atk. 878 ; Allen v. Dundas, 9 See Van Fossen v. State, 87 Ohio 8 T. R. 125 ; Ex parte Jolliffe, 8 Beav. St. 817. 168 ; Archer «. Mosse, 2 Vem. 8 ; Nel- < Nelson v. OldBeld, 2 Vem. 76 ; son v. Oldfield, ib. 76 ; Plume v, Beale, Williams v. Saunders, 5 Cold. 60 ; IP. W. 888. Tompkins v. Tompkins, 1 Story, 547 ; * Whicker v. Hume, 7 H. L. Cas. and oomp. Whicker v. Hume, 7 H. L. 124 ; De Mora v. Concha, 29 Ch. D. Cas. 124, 148 ; De Mora v. Concha, 29 268, affirmed on appeal nom. Concha Ch. D. 268, 800, C. A. v. Concha, 11 App. C41S. 541. ^ Ibid. See also Smith v. Fenner, 1 * Concha v. Concha, supra. Gall. 171 ; Spencer v. Spencer, ib. 623 ; 246 ESTOPPEL BT RECORD. [CHJkP. T. ties, that the testator was possessed of mental capacity to make the wUL* Sales of wreck and derelict mider municipal regulations fall within the same rule. In the case of Grant v, McLachlin' an American vessel was captured by a French privateer and carried into a Spanish port ; but it appeared that the Spanish authori- ties refused to take any steps for the condemnation of the vessel It was subsequently put in requisition by the French govern- ment, sent to Baracoa in Cuba, and there dismantled and aban- doned. !rhe defendant purchased the wreck some six months later under a sale by the Spanish commissary at Baracoa, raised and repaired it, and took the ship to New York, when the origi- nal owner brought the present action of trover to recover it The court held that as the vessel had been abandoned as a wreck, and* as it had been sold according to the laws of Spain, the property was transferred to the purchaser, and his title be- came good against the world. Mr. Justice Thompson said that . the capture was no doubt illegal, and that as the captors had not obtained any judicial condemnation, the plaintifTs title was not lost by the piratical proceedings thus far. But the subsequent proceedings were fair and according to law; and whether the property had been previously acquired by piracy or not he did not deem material.^ 1 Brigham v. Fayerweatlier, 140 ognise. . . . This is not a case of prize, Mass. 411. In regaiti to the ezecu- or title founded on capture. Sach tor's representing legatees, see De Mora cases are governed by different rales, r. Concha, 29 Ch. D. 268 ; 8. c. Concha and must be tested by the law of na- V. Concha, 11 App. Cas. 641 ; ante, p. tions. The sale in this case was a pro- 230. ceeding under a municipal regulation, ■ 4 Johns. 84. and every government prescribes its • * Goods taken from pirates,' he con- own rules relative to wrecks and prop- tinued, 'and belonging to others, will erty left derelict. By the English law under the English law be taken and vessels cast on shore and abandoned, sold by goveniment if the owner comes and not reclaimed within a year, are to not within a reasonable time to vindi- be sold by a public officer, and the pro- cate his property. "What that reason- ceeds placed in the hands of the gov- able time shall be every government emment. We have a similar statute in will determine for itself. A sale ac- this state ; and I believe it was never cording to the law of the place where doubted but that the purchaser would the proi)erty is must vest a title in the obtain a valid title, which would be purchaser which all foreign courts are everywhere respected.' See The Til- bound, not only from comity, but on ton, 5 Mason, 465. strong grounds of public utility, to rec- CHAP. T.] FOBEIQN WDQMiaVTB IN REM. 247 These cades ore sufficient to show that the sentences or de- crees of foreign courts of competent jurisdiction proceeding in rem are conclusive against all persons of the merits of the ques- tion — the status or title — in issue, so far as they clearly ap- pear to have been tried ; and this too though they are plainly erroneous.^ On the other hand, it is certain that an abjudication of a foreign (like that of a domestic) court is conclusive only of matters without which the judgment could not have been pronounced.' In the case first cited Shattuck filed a libel on the instance side of the District Court of the United States, alleging that Maley, while in command of a public armed vessel of the United States, took possession of a schooner and cargo, in vio- lation of the law of nations, belonging to the libellant, a Danish subject ; that he put on board a prLse crew who carried the ves- sel to parts unknown ; and that they had not brought the same to adjudication in any Court of Admiralty. The libel then prayed for monition to proceed to adjudication, or, in default thereof, for restitution in value, with damages. Maley admitted the seizure, but justified it on the ground that there was probable cause in that the vessel was violating an act to suspend com- mercial intercourse between the United States and France. He also alleged that after the seizure the vessel and cargo were cap- tured by a British war vessel, carried to Jamaica, and libelled and condemned in the Vice- Admiralty Court there as French or Spanish property. Maley relied on this decree as establishing the fact conclusively that the vessel and cargo were not Danish property. The Supreme Court of the United States held that the sentence of condemnation of a vessel as enemy property was 1 See alfio Caatriqne v, Imrie, L. R. Mora v. Concha, 29 Ch. D. 268 ; s. c. 4 H. L. 414 (proceeding in a foreign Concha v. Concha, 11 App. Cas. 641, admiralty court establishing a maritime one of the most striking and instruc- lien) : Story, Confl. Laws, p. 814, note, tive examples to be found ; the finding 8th etl. ; Monroe v, Douglas, 4 Sandf. of a domestic court of a foreigner's domi- Ch. 126 ; Denison v. Hyde, 6 Conn, oil being held by the Court of Appeal 508 ; Townsend v. Moore, 8 Jones, 147 ; not conclusive upon thiixl persons. Calvert v. Bovill, 7 T. R. 523 ; Christie The masterly judgment in Brigham ». V, Secretan, 8 T. R. 192. Fayerweather, 140 Mass. 411, goes still * Maley v. Shattuck, 8 Cranch, 458 ; further, it will be seen. Burlen v. Shannon, 99 Mass. 200 ; De 248 ESTOPPEL BT BECOBD. [CHAP. Y. not conclusive of its nationality ; it being entirely consistent with such sentence that the vessel was in fact the property of a neutral. The nationality of the vessel was not a matter essen- tial to the adjudication ; and there was no estoppel to show the real fact.^ We must here carefully observe the distinction between this class of cases and that represented by Croudson v. Leonard, already referred to; in which, it will be remembered, it was held that a sentence of condemnation was conclusive of the fact upon which it proceeded, in that case the breach of block- ade. The class of cases of which Maley v. Shattuck is a rep- resentative decide, not that the sentence is inconclusive of the fact upon which it proceeded, — not^ for example, that the sentence may be falsified about the breach of blockade, or the resistance to search, — but that the sentence shall not work an estoppel upon a matter not essential to the adjudica- tion, as, for example, the nationality of the vessel' The matter of the breach of blockade, or of the resistance to search, or, in general, of breach of neutrality, is vital to the sentence of con- demnation ; such a sentence could not have been declared with- out proof of such facts. But it is not necessary to the sentence that the vessel, in point of fact, belonged to the nation with which the captor is at war ; it is merely a conclusion or an inference of international law that a ship which is seeking to break a block- ade, to use the most familiar example, belongs to the enemy. It is, indeed, in one sense enemy property, in this, that it is an act of hostility to attempt to break a blockade, so far as the par- ticular vessel is concerned. That vessel has arrayed itself in hostility to the blockading force; in this sense it is properly condemned as enemy property. ^ Chief Justice Marshall, in deliver- property, however clearly it may he ing the opinion, said : ' It is well known proved that the vessel is in truth the that a vessel libelled as enemy's prop- vessel of a friend. Of consequence this erty is condemned as prize if she act in sentence, heing only conclusive as to its such a manner as to forfeit the protec- own correctness, leaves the fact of real tion to which she is entitled by her title open to investigation.' neutral character. If, for example, a ^ Concha v. Concha, 11 App. Cas. search be resisted, or an attempt be 541. The contrary doctrine in Bernard! made to enter a blockaded port, the v. Motteux, 2 Dong. 574, — and 9C% laws of war as exercised by belligerents Hughes v. Cornelius, 2 Show. 232, note, authorize a condemnation as enemy's — ia now overruled. CHAP, y.] FOREIGN JUDGMENTS IN REM. 249 Further, foreign judgments in rem raise no estoppel concern- ing findings stated obscurely or with ambiguity ; ^ there is no presumption or anything else to help even a domestic judgment in such a case. In the case just cited the record of proceedings contained no allegation of an offence in the nature of a libel (the judgment having been in admiralty) ; and for this reason the court held that the sentence was not an estoppel. The case of Christie v, Secretan,^ an action upon a policy of insurance on a vessel captured and condemned as prize, also raised a question of this sort. The defence was that the ship was lost by the negligence of the owner in not having on board the rdle d'^qui- page, and that she was condemned on this ground. Mr. Justice Grose said that it was indeed necessary that the ship should have such papers, to hold the insurer liable ; and that if the ship had been condemned for the want of such papers, it would have been conclusive against the owner. In regard to the sen- tence of condemnation he said that they could only look at the ground of it, and not at any of the previous reasons stated. The express ground was that the ship belonged to the enemies of France, and that did not n^ative any fact or circumstance that the plaintiff was bound to prove in order to maintain his action.^ The concluding portion of the French sentence was to this effect: The tribunal 'likewise adjudges and declares the validity of the prize of the goods and effects, whereof the lading and cargo of the said ship Mercury consists ; and all that for want 1 Upon this point Mr. Jostice Story this sort are produced before them, remarks (Bradstreet v. Neptune Ins. Whatever points the sentence professes Co., 8 Sam. 600) : * I do not under- ex directo to decide they are bound to stand that in construing a foreign sen- respect and admit to be conclusive, tence which is to be held conclusive But if the sentence be ambiguous, or in rem as to the facts and grounds of indeterminate, as to the facts on which the sentence stated therein, this court it proceeds, or as to the direct ground is bound to make out such facts and of condemnation, the sentence ought grounds by ai^iment and inference not to be held conclusive, or the courts and conjecture. The facts and grounds of other countries put to the task of ought to appear ex directo in order to picking out the threads of ailment, estop the parties in interest from de- or of reasoning or recital, in order to nying or questioning them. I agree weave them together so as to give force with the doctrine of Lord EUenbor- or consistency or validity to the sen- ongh, in Fisher v. Ogle, 1 Camp. 418, tence.' that courts of justice are not bound to * 8 T. R. 192. fish out a meaning, when sentences of * See Calvert v, Bovill, 7 T. R. 528. 250 EBtOFPEL BY RECORD. [CHAP. V. of the despatches and sea-papers of the said captain being in regular order ; on which account she is looked upon as belonging to the enemies of the French Bepublic.' In Robiuson 9. Jones ^ the record of the sentence was held ambiguous. It declared that the court 'pronounced the said vessel called The Franklin, and her lading, to have been unlaw- fully rescued and retaken by the master from the possession of the prize-master, and others put on board thereof from his Maj- esty's sloop-of-war « . . whilst proceeding to a British port for adjudication, and as such, or othertvieey subject and liable to con- fiscation.' The ambiguity lay in the words in italics ; and these words destroyed the sentence as an estoppel^ Nor could parol evidence be admitted to show what was in £Eict decided. Evi- dence is often received to show the real issue upon which a judgment .or verdict proceeded in a question of identity between matters in dispute in two actions, but not, perhaps, to prove a specific verdict &om a record amlHguous on its face. In other words, parol evidence cannot be received to explain a patent ambiguity in a judgment The language itself implies that there* was no definitive decision of the particular point^ The jurisdiction of the court may be called in question. In order to give a foreign judgment any force extra territoriam it ^ 8 Mass. 536. that these words amount to a direct al- ' Mr. Chief Justice Parsons distin- legation that the rescue was even one of goishes this case from that of Baxter v. the final causes of the condenination. New England Ins. Co., 6 Mass. 277. He There had been, as appears from the de- said that the decree in that case, ' after cree, an inquiry relative to the violation having expressly and distinctly alleged of the blockade of the West India Isl- that the vessel had violated a blockade ands, with respect to which perhaps de facto by egress, proceeds to allege the judge was not fully satisfied. Ad- that for that, and other mfficunt causes, mit that he was fully satisfied that a she was condemned. Here was not only rescue had actually taken place ; yet he a direct assertion that a blockade had might not hold himself obliged under been violated, but also that the violation all circumstances to condemn expressly was a cause of the condemnation ; and for that cause. The natural construc- this being a sufficient cause by the law tion of the phraseology is that as the of nations, it was immaterial whether vessel had been rescued she was liable any other causes existed or not. But to condemnation for that cause, or for the present decree after alleging a res- some other cause not stated. Now, this cue declares that for such cause, or is far from being a direct unequivocal otherwise, the vessel is liable to condem- assertion that she is condemned because nation. Now we know no rule of con- she has been rescued.* struction by which it can be maintained * But comp. ante, p. 87. CHAP, v.] FOBEIGK JUDGMENTS IK REM. 261 must be made to appear that tlie conrt which pronounced the judgment had lawful jurisdiction over the cause, over the res, and over the parties.^ If the record does not show any monition, or any hearing, or that the formalities of law had been gone through, the judgment will not be even prima facie evidenca^ And when the record of a foreign judgment in rem is silent in regard to the matters which constitute jurisdiction, jurisdiction will not be presumed.^ 1 Story, Confl. Laws, f 586. See The diction orer the subject-matter which Mecca, 6 P. D. 106, reversing 6 P. D. it has determined. In some cases that 28 ; The FkdOyen,! Ch. Bob. 185; The jurisdiction unquestionably depends as Henrick k Maria, 4 Ch. Rob. 48 ; 1 Par^ weU on the state of the thing as on aons, Ship. & Adm. 77, and eases cited« the constitution of the court If by any This subject came under consideration means whatever a prize court should be in an early case in the Supreme Court induced to condemn as prize of war of the United States. Rose «. Himely, a vessel which was never captnied, it 4 Crajich, 241, 269. In delivering the could not be contended that this con- opinion of the court Marshall, C. J. demnation operated a change of prop- said : ' The power under which it [the erty. Upon principle, then, it would foreign court] acts must be looked into, seem that to a certain extent the ca- and its authority to decide questions pacity of the court to act upon the thing which it professes to decide, must be condemned, arising from its being within considered. But although the general or without their jurisdiction, as well as power by which a court takes jurisdic- the constitution of the court, may be tion of causes must be inspected in considered by that tribunal which is order to determine whether it may to decide on the effect of the sentence, rightfully do what it professes to do. Passing from principle to authority we it is still a question of serious difficulty find that in the courts of England, whether the situation of the particular whose decisions are particularly men- thing on which the sentence has passed tioned because we are best acquainted may be inquired into for the purpose of with them, and because, as is believed, deciding whether that thing was in a they give to foreign sentences as full state which subjected it to the jurisdic- effect as are given to them in any part tion of the court passing the sentence, of the civilized world, the position that For example, in every case of a foreign the sentence of a foreign court is conclu- sentenee condemning a vessel as prize sive with respect to what it professes to of war the authority of the tribunal to decide is uniformly qualified with the act as a prize court must be examina- limitation that it has in the given case ble. Is the question whether the ves- jurisdiction of the subject-matter.' The sel condemned was in a situation to Flad Oyen, 1 Ch. Rob. 186, and other subject her to the jurisdiction of that cases. court also examinable ? This question, ^ Sawyer v. Maine Ins. Co., 12 Mass. in the opinion of the court, must be an- 291 ; Bradstreet r. Neptune Ins. Co., 8 swered in the affirmative. Upon prin- Sum. 600. ciple it would seem that the operation > Commonwealth v. Blood, 97 Mass. of every judgment must depend on the 688 ; The Griefswald, Swabey, 430. power of the court to render that judg- This work does not profess to deal ment, or, in other words, on its juris- with what constituteB jurisdiction ; if 252 ESTOPPEL BT BECORD. [CHAP. T. In Commonwealth v. Blood this was held to be true of a judg- ment rendered in another of our American states by a court of record in a divorce case; the record showing that the libellee resided in another state, and not showing any service of process upon her. The court declared that the jurisdiction of the for- eign court over the subject-matter was a special authority not recognized by the common law, and that its proceedings there- fore stood on the same footing with those of courts of limited and inferior jurisdiction.^ Though the jurisdiction, however, may ordinarily be inquired into, it is possible that if there has been a direct adjudication of the matter, on appearance and contest, this may be conclusive ; it has been so decided in actions in personam.^ This, however, would be true only where the question of jurisdiction (the par- ties being before the court) related to the subject-matter of the suit, or to the validity of the notice to the defendant as a rm- derU of the state. An adjudication of jurisdiction over a non- ][esident who had not been served with notice within the state, and had not appeared, or had appeared only to test the ques- tion of jurisdiction,^ could not be conclusive; and this too though jurisdiction had been acquired over property of the de- fendant. The fact that the defendant's property may have been sold under orders of the court (e. g. to satisfy a decree for ali- mony), and a good title conveyed, would not make the judgment binding extra territoriam except of the change of title to the property so sold.* the reader desires to pursue the inquiry, Mass. 200. The same rule was in Bar- he is referred to the followiug authori- ringer v. King, 5 Gray, 9, 11, intimated ties : Dodd v, Una, 40 N. J. Eq. 672 ; to be true of the record of a judgment School Trustees r. Stocker, 18 Vrooro, rendered by the Supreme Court of an- 116 ; Hudson v. Guestier, 4 Cranch, other state in an action of contract 293 ; 8. c. 6 Cranch, 281 ; The Mary, against a resident of Massachusetts. 9 Cranch, 126; The Tilton, 6 Mason, « Gunn v. Howell, 85 Ala. 144; 465 ; Reid v. Darby, 10 East, 143 ; Wyatt v. Bambo, 29 Ala. 510 ; Hud- Hunter V. Prinsep, ib. 878 ; 1 Parsons, son v. Guestier, 6 Cranch, 281, 284 ; Ship. & Adm. 75-78, and cases cited. If Grignon v. Astor, 2 How. 819, 840. See the foreign court had jurisdiction when ante, pp. 206, 207. the suit was begun, it will be presumed, * Walling v. Beers, 120 Mass. 548. in the absence of eyidence to the con- See next chapter, trary, that it had jurisdiction to the * Personal jadgment, without ser- end. Lockhart v. Locke, 42 Ark. 17. vice or appearance, against a foreigner 1 See also Burlen r. Shannon, 99 will not be enforced as a judgment in CHAP, v.] FOREIGN JUDGMENTS IN REM. 253 The parties are not estopped to show the want of authority in the foreign tribunal to sit as a court ; ^ at least, the party who did not institute the proceedings there is not thus estopped. But the presumption generally is that the tribunal was a legiti- mate one.^ In the case of The Flad Oyen, just cited, the English Court of Admiralty held that the authority of a French consul, sitting as a judge in admiralty in Norway, under a French commission, would not be recognized.^ And in Snell v, Faussatt the court said that when the constitution of a foreign court was not known, it would be presumed to be a legal one ; bat when the source of its authority and constitution was stated, the matter ought to be examined ; and if it was contrary to the usual manner of constituting courts, the burden of proof was shifted upon the party who would support the decree. Thus, it was nol usual for courts to be constituted by a military com- mander ; and since it appeared that the court in question had been so established, the presumption of legality did not arise. In the case of The Griefswald, just cited, the vessel of a British subject had been injured in Turkish waters by collision with a Prussian ship ; whereupon he applied to the British con- sul to request the P;russian authorities there to detain the offend- ing vessel for satisfaction. The master of the Prussian vessel soon after this applied to the Prussian legation to have a mixed court appointed to adjudicate the matter; but the British consul refused to take part in the matter, saying that he was not in a position to recognize the acts and proceedings proposed. The Prussian legation then proceeded to constitute a tribunal for trying the cause without any participation or recognition by the English authorities, so far as it appeared fram the transcript of the proceedings, and after the injured party had departed with his vesseL The case was tried without notice or appearance, and the complaint of the British subject was dismissed. In an action by him for the same injury in an English Vice-Admiralty rem, though no diBtinction is made in The Henrick k Maria, 4 Ch. Rob. 48 ; the foreign country between such judg- The Flad Oyen, 1 Ch. Rob. 135 ; 1 Par- ments. The Mecca, 6 P. D. 106, re- sons. Ship. & Adm. 77, and cases cited, yersing 5 P. D. 23. ' Snell v. Fanssatt, supra. 1 Snell V. Fanssatt, 1 Wash. C. C. • The Kierlighett, 8 Ch. Rob. 96. 871 ; The Grielswald^ Swabey, 430 ; See The Christopher, 2 Ch. Rob. 209. 254 B3T0PPEL BT BBCOBD. [CHAP. Y. Court it was held that the decree just meiitioDed» in favor of the Prussian, was no estoppel, in the absence of proof that the court had jurisdiction by treaty, usage, or voluntary submission* A foreign judgment in rem may also be impeached for fraud practised at the trial upon the person against whom the judg- ment is pleaded. Whether this means that a party may show that a fact decided was so decided either by reason of false or perjured testimony, or by reason of suppression of evidence, is not clear ; though it ia clear that any judgment fraudulently ob- tained in any other way than as a result of a consideration by the court of the very question of fraud would be open to coir lateral impeachment High authority may be cited, in regard to judgments in personam of foreign countries, to the effect that fraud of the former kind, i. a the production of false evidence or the suppression of evidence, will not afford ground fbr im* peaching the judgment ;^ but this in turn lias also been denied by high authority and the contrary actually decided.^ We can- 1 Flower v, Lloyd, 10 Ch. D. 827, had no opportunity to appear in the 888, by James and Thesiger, L. JJ. in French court and diapute the all«ga- the Court of Appeal ; Castrique v. Beh- tions. In the present ca0e it ia quite Tens, 80 L. J. Q. B. 163 ; 8. o. 2 £1. & £. consistent with the averments in the 709 ; Field and Hoffman, JJ. in United declaration that the plaintiff had notice States V. Flint, 1 Bigelow, Fraud, 88, of the proceedanga in France, and pur- note. See Magoun v. New Eog. Ins. posely aUowed judgment to go by de- Co., 1 Story, 157, 167 ; Hood v. Hood, fault, or even that he appeared in the 11 Allen, 196; 110 Mass. 468 ; 2 Story's French court, intervened, and was Etiuity, pp. 878, 876, 18th ed. In Cas- heard, and that the very question triqae V. Behrens, supra, Croropton, J. for whether Troteanx was a holder for the Queen*s Bench said : ' It is averred, value was then decided against him. and we must on the demurrer assume We think, on the principle laid down that it is truly averred, that by the law ia Bank of Australasia v. Nias, 16 of France the judgment in rem can only Q. B. 717, that the plaintiff cannot be obtained if the holder of the bill impeach the judgment here on such of exchange be a French subject, and grounds, and that whilst it stands un* bona fide holds for value ; and we must reversed this action cannot be main- take it as admitted on this demurrer taijied.' This case was not before the that Troteaux, the French holder of the court in Abouloff v. Oppenheinier, bill of exchange, by the fh^udulent pro- infra. curement of the defendants, falsely rep- * Abouloff «. Oppenheimer, 10 Q. B. resented to the French courts that he D. 295, C. A. ; Hunt v. Hnnt, 72 N. Y. was holder for value, when he was not 217, 227 (dictum). See Ochsenbein «. It is not necessary to say what would Papelier, L. R. 8 Ch. 695 ; Prioe v. be the effect if it were stated that, by Dewhurst, 8 Sim. 279, 802. the contrivance of the defendants, the In Abouloff v, Oppenheimer a dis- proceedings were such that the plaintiff tinction ig tftken b«twe«a th» court't CHAP, y.] FOREMK JUDGMENTS DT BEM. 265 not but think that the view first stated is the better.^ It is so settled with regard to judgments of courts of our sister states.' being misled and being mistaken (comp. for now the mistake is discovered (by the case of a perverse disregard by a the domestic court), and still the party foreign court of the law of the eountry in whose favor it was made is seeking which should govern. Simpson v, Fo- to press his advantage. That cannot be go, 1 Hem. & M. 196; Liverpool Credit any better than the other case. Comp. Co. V. Hunter, L. R. 8 Ch. 479, 4S4 ; R«igrave «. Hurd, 20 Oh. D. 1 ; Ark- Castrique v. Imrie, L. R. 4 H. L. 414) ; wright v. Newbold, 17 Ch. D. 801, 820 ; that distinction being based upon the 1 Story, Equity, p. 210, note, 13th ed. ; ground that where the foceign ooait has cases is regard to innocent misrepresen- been misled by a party, to allow him tions sought to be enforced. the benefit of the judgment would be to ^ Christmas v. Russell* 6 WalL 200 ; allow bim to take advantage of his own post. Foreign Judgments in Petsonam. wrong. But that is equally true where ^ Ibid, the foreign court was only aiistiJESo ; 256 ESTOPPEL BT BECOBD. [CHAP. VI. CHAPTER VL FOREIGN JUDGMENTS IN PERSONAM. § 1. Historical View of the Subject. We proceed next to the consideration of foreign judgments in personam. And first, of foreign judgments strictly so called^ and judgments rendered in the colonies and provinces of Eng- land. The two classes will be considered together, for the rea- son that the courts have not practically distinguished between them ; though grounds for a distinction have been suggested in several cases, as will be seen. We call attention now to the cases in historical order, by which it will appear that for many years there was much fluctiir ation in the decisions concerning the effect to be given the judgments of tribunals of foreign countries : the courts at one time considering them as prima facie evidence only, and liable to be overturned by countervailing proof ; then advancing and holding them conclusive of the matters adjudicated, and again receding to the former position ; until finally, when the precise point presented itself for earnest consideration, they declared a settled rule in favor of the conclusiveness of these judgments. We shall see also that this step was finally taken in England considerably earlier than in America; and that some of our courts still hesitate to take it. One of the most familiar cases upon this subject is Walker v. Witter.^ That was an action in the King's Bench in 1778 upon a judgment rendered in the Supreme Court of Jamaica. The defendant, besides nil debet, pleaded nul tiel record ; the plain- tiffs having declared ' prout patet per recordam.' Issue of fact was joined upon the first plea, and a verdict was given for the plaintiffs. To the plea of nul tiel record the plaintiffs replied , » 1 Doug. 1. SECT. I.] F0BET6N JUDGMENTS IN PERSONAM. 257 that there was such a record, which they wei*e ready to verify by production. Coonsel for the defendant, apparently on a motion in arrest of judgment on the verdict upon the first plea, contended that an action of debt could not be maintained on a foreign judgment ; or if it could, that the consideration of the judgment should be shown. For the plaintiffs it was argued that where indebitatus assumpsit would lie, debt could be main- tained, citing Crawford v. Whittal.^ Counsel said that it was also determined in that case that the judgment of itself was prima facie evidence of the debt, and that therefore the plain- tiffs were not bound to allege the consideration. The question whether the other plea was good was also argued by both sides. Lord Mansfield said that the plea of nul tiel record was improper ; and that though the plaintiffs had called the judg- ment a record, it was clear that they did not mean that sort of record to which implicit faith was given by the courts of West- minster HalL The question, he said, was brought to a narrow point, for it was admitted on the part of the defendant that indebitatus assumpsit would have lain, and on the part of the plaintiffs that the judgment was only prima facie evidence. This being the case, debt was a proper action. He thus decided the only points in the case; but he then added obiter that though foreign judgments were good grounds of action, still they were examinable on the merits ; and among other cases he re- ferred to one in which he said Lord Hardwicke had thought himself entitled to examine into the justice of a decision of the House of Lords because the original decree was rendered in a court in Wales.* The other judges agreed with Lord Mansfield. It will be observed, however, that the question was not raised in the case whether foreign judgments were conclusive ; the plain- tiffs only insisting that they were prima facie evidence, as this was sufficient for their case. In Galbraith v, Neville ' the question arose (after verdict for the plaintiff) upon a rule to show cause why there should not be a new trial Lord Kenyon there said : ' I cannot help enter- 1 H. 18 Geo. 8, B. R. ' 1 Eq. Cas. Ab. 83, pi. 8 ; laqaierdo v, Forbes, H. 24 Geo. 8, B. B. * 1 Dong. 5, note. 17 268 ESTOPPEL BY BBCORD. [CHAP. TI. taining very serious doubts concerning the doctrine of Walker V, Witter that foreign judgments are not binding on the parties here. But when I am told that Lord Hardwicke did not hold himself bound by a decree on the chancery side of the Court of Great Sessions in Wales, affirmed in the House of Lords, I own I am quite lost in a maze.' Mr. Justice BuUer, however, in the same case, approved the doctrine of Lord Mansfield in Walker V. Witter, saying that he had often heard that eminent jurist repeat what was said by Lord Hardwicke in the case alluded to, and that this was the ground of his lordship's opinion : ' When you call for my assistance to carry into effect the decision of some other tribunal, you shall not have it if it appears that you are in the wrong.' The same view was entertained by Chief Justice Eyre in Phillips v. Hunter.^ A case before Lord Chief Justice Best in 1826^ has often been cited as sustaining the doctrine that foreign judgments are conclusive ; but it is not a direct authority for that position. All that his lordship held was that such judgments were at all events prima facie ground of actions ; and he expressly stated that it was not necessary to decide whether the judgment pro- nounced could be impeached on the merits. The next case which entertains the doctrine of Lord Mans- field in Walker v. Witter was decided in the House of Lords in 1834 * In this case a bill had been filed in Ireland to enforce a decree of the Court of Chancery in England ; the bill was dis- missed for want of jurisdiction, and of course the court of Ire- land did not entertain the question of the conclusiveness of the English decree. The only point, therefore, that could be decided ^ 2 H. Black. 403, 411. 'It is in judgments are obligatory; not as con- one way only,' he said, 'that the sen- elusive, but as matter in pais, as oonsid- tence or judgment of the court of a for- eration prima facie sufficient to raise a eign state is examinable in our courts, promise. We examine it as we do all and that is when the party who claims other considerations of promises, and the benefit of it applies to our courts to for that pur]i03e we receive evidence of enforce it. When it is thus voluntarily what the law of the foreign state is, and submitted to our jurisdiction we treat whether the judgment is warranted by it, not as obligatory to the extent to that law/ Comp. the rule ante, pp. which it would be obligatory, perhaps, 102, 103. in the countiy in which it wa.s pro- * Amott v, Redfem, 8 Bing. 858. noimced, nor as obligatory to the ex- ' Houlditch v. Donegal, 8 Bligh, tent to which by our law sentences and K. s. 301. SECT. I.] FOREIGN JUDGMENTS IN PERSONAM. 259 on the appeal to the House of Lords was whether the court in Ireland had erred in refusing to entertain the bill The decree was reversed ; the lord chancellor holding, on the authority of Martin v. Nicolls,^ that a foreign decree may well be the ground of a bill in another court But in the course of his opinion he took occasion to express his views very decidedly in favor of the doctrine that the judgments of the courts of other countries were only prima facie evidence of debt, and might be reopened in a suit to carry them into effect at home ; and this, he con- tended, was eminently proper where it appeared that the law of the foreign country was inconsistent with that of England. And he cited Buchanan v. Rucker ' in illustration of this point, where the court refused to enforce a foreign judgment against a party residing in England who upon the face of the proceedings appeared only to have been summoned ' by nailing up a copy of the declaration at the court-house door.' • Don V. Lippman'in the House of Lords is a later case in which the language of Lord Brougham is much to the same effect ; but the fact was that the defendant in that case was a subject of Scotland, while the judgment against him was ren- dered in France, and the action was begun and ended in his absence, the only citation being by ' the affixing of notice in a public office,' in accordance with a form known in the French courts. Lord Brougham said the case was ' stronger than that of the defendant in Buchanan v, Rucker, and he must have the same principle applied to it' The language of the court in Douglas V. Forrest,* quoted by Lord Brougham, which was an action in an English court on a Scotch judgment of horning against a Scotchman bom, is to the same efi'ect But these cases do not decide that the merits of a valid foreign judgment may be inquired into ; they merely hold that the judg- n)ent will not be enforced if it appear that the foreign court had not acquired jurisdiction of the case. Of this more at length in a subsequent part of this chapter. These are all the English cases of importance which favor the rule that the judgments of courts of other countries are inconclusive ; and it will be 1 S Sim. 458. » 5 Clark & F. 1. * I Camp. 63 ; 8. c. 9 East, 192. * 4 Bing. 686. 260 ESTOPPEL BY RECORD. [CHAP. YL observed that in none of them is there an express and au- thoritative adjudication of the point. On the other side, among the early cases affirming the conclu- siveness of foreign judgments, we have the language of Lord Kenyon, above quoted, in Galbraith v. Neville ; of Lord Ellen- borough, in Tarleton v. Tarleton ; ^ of Lord Hard wicke, in Boucher V. Lawson ; ^ and of Lord Chancellor King, in Burroughs v, Jamineau.^ Gold v. Canham ^ also proceeds upon this view ; and the later case of Martin v. Nicolls ^ is a direct authority that the judgments of colonial courts cannot be questioned. Coming down to a still later period, we find Lord Denman in two cases, one in the year 1839,^ the other in the year 1844,^ supporting the same side of the question. In the second case he very clearly intimated that a plea to an action upon a colo- nial judgment ought to steer clear of an inquiry into the merits. ' For,' he added, ' whatever constituted a defence in that court ought to have been pleaded there.' But the doctrine of Lord Mansfield in Walker v. Witter was directly impugned in the recent case of Bank of Australasia v, Nias,^ and the rule adjudged that a plea to the merits in a suit upon a colonial judgment otherwise valid was bad ; and this case has settled the law of England.® The action in that case was upon a colonial judgment; and whether the same conclusiveness should be accorded to judg- ments rendered in foreign countries, from which no appeal lies to any English court, was not and could not have been decided. Lord Campbell expressly refrained from giving an opinion upon the point. There had never been an authoritative decision of the question prior to the year 1862, though many dicta are to be found among the cases to the efifect that they are only prima facie ground of suit. Several of the cases have been already 1 4 Maule & S. 20. ^ Henderson v. Henderson, 6 Q. B. s Cas. temp. Hardw. 85, 89. 288. » Mosely, 1. M6 Q. B. 717. ^ 1 Cas. in Ch. 311 ; also reported in * De Cosse Briasac v, Bathbone, 6 note to Kennedy v, Cassillis, 2 Swanst. Hurl. & N. 301 ; Scott v. Pilkington, 2 313, 325. Best & S. 11 ; Yanqaelin v, Bouard, 15 « 3 Sim. 458. C. B. N. s. 341. 0 Ferguson v, Mahon, 11 Ad. & £. 179. BECT. I.] FOREIGN JUDGMENTS IN PEBSONAM. 261 refened to. In that year the important case of Scott v. Pilking- ton ^ was tried in the Court of Queen's Bench, — an action upon a judgment rendered in New York, The distinction, however, which Lord Campbell suggested between the conclusiveness of colonial and foreign judgments (that in the former case an appeal lies to the Privy Council) does not seem to have been presented to the court ; at any rate» it was unnoticed. The court, by its Chief Justice, said : ' It was not denied that since the decision in the case of The Bank of Australasia v. Nias we were bound to hold that a judgment of a foreign court having jurisdiction over the subject-matter could not be questioned on the ground that the foreign court had mistaken their own law, or had come on the evidence to an erroneous conclusion as to the facts.' So that it appears that counsel failed to call the attention of the court to the supposed distinction ; and the court without hesitation gave an effect to the decision of Lord Camp- bell which he himself declined to give to it The question, how- ever, must be regarded as settled in the English courts by this case. The rule in the case referred to went, indeed, a step fur- ther, and declared that though as in that case an appeal be actually pending upon the judgment of the foreign court, this should be no bar to the action in England ; although it was said that it might afford ground for the equitable interposition of the English court to prevent the possible abuse of its process, and on proper terms to stay execution.^ The i^esult, then, finally reached in the courts of England is that foreign judgments, strictly so called, and colonial judgments stand in the same category and on a perfect equality so far as the matter of conclusiveness is concerned; in either case any plea which goes to the merits of the action upon which the judgment was rendered, whether impeaching the ruling upon the law or the decision upon the facts,* is bad, — provided the judgment was not otherwise subject to impeachment.^ But of > 2 Best & S. 11. * See also Crawley v. Isaacs, Id Law s See Taylor o. Shew, 89 Cal. 586. T. N. 8. 529 ; Doglioni v. Crispin, L. R. * It matters not that all the facta 1 H. L. 301 ; Barber v. Lamb, 8 C. B. were not before the conrt. De Cosse N. s. 95; Kobertson v, Strufh, 5 Q. B. Briarac ». Rathbone, 6 Hurl. & 'N'. 301 ; 941 ; Hamilton v. Dutch East India f'o.. In re Trufort, 86 Ch. D. 600, Stirling, J. 8 Bro. P. C. 264 ; Becquet v. Mac-Car- 262 ESTOPPEL BT BECOED. [CHAP. YI. course a foreign judgment could not have greater effect than it would have where rendered ; and therefore it is always proper to inquire into the effect of the judgment in the foreign country. If it would not there constitute a res judicata, it cannot else- where.^ • The subject has again come under review by the Court of Queen's Bench, but in a somewhat different form.^ The ques- tion raised in Godard v. Gray was whether a judgment rendered in France upon an English contract, the record of which showed on its face that the law of England had been mistaken and so misapplied, was conclusive when sued upon in an English court. The court decided the question in the affirmative ; taking occa- sion to reaffirm also the doctrine of the late cases above pre- sented.' And this is considered to have settled the law.^ thy, 2 Barn. & Ad. 951 ; Burrows v. laid down by the very learned author of Jeinino, 2 Strange, 788; Fei^son v. Smith's Leading Cases, in the original Hahon, 11 Ad. & E. 179; Bicardo o. note to Doe v. Oliver, Smith L. C. 2d Garcino, 12 Clark & F. 868 ; Bank of ed., at p. 448, that it ia clear that if the Australasia v. Hardin, 9 C. B. 661 ; judgment appear on the face of the pro- Cammell v. Sewell, 8 Hurl. & N. 617 ; ceedings to be founded on a mistaken 8. c. in error, 5 Hurl, k N. 728 ; Ker- notion of the English law, it would sail V. Marshall, 1 C. B. N. s. 241; not be conclusive. For this he cites General Nav. Co. v. Guillou, 11 Mees. Novelli r. Rossi, 2 Bam. & Ad. 757, & W. 877 ; Frayes v. Worms, 10 C. B. which does not decide that point, aod N. 8. 149; Simpson v, Fogo, 1 Hem. no other authority ; but the great leam- k M. 195 ; Obicini v. Bligh^ 8 Bing. ing and general accuracy of the writer 335. makes his unsupported opinion an au- 1 Nouvion V. Freeman, 87 Ch. D. thority of weight, and accordingly it* 244, C. A. reversing 85 Ch. D. 704, on has been treated with respect. In Scott the effect of the judgment iu the foreign v. Pilkington, 2 Best & S. 11, 42, the country. court expressly declined to give any opin- * Godard r. Gray, L. R. 6 Q. B. 189. ion on the point not then raised before See ante, p. 242 ; Imrie v. Castrique, 8 them. But we cannot find that it has C. B. N. 8. 405, 417 ; Castrique v. Imrie, been acted upon ; and it is worthy of note L. R. 4 H. L. 414, 437 ; Simpson v. Fogo, that the present very learned editors of 29 L. J. Ch. 657 ; s. c. 82 L. J. Ch. 249, Smith's Leading Cases have very mate- aud 1 Hem. & M. 195 ; Dent o. Smith, rially qualified his position, and state it L. R. 4 Q. B. 414. So in regard to thus: " If the judgment be founded on judgments rendered in courts of our an ineorreot yiew of the English law, sister states. Richards v. Barlow, 140 hnotnngly or perversely acted on." The Mass. 218, 221. doctrine thus qualified does not apply to ' Mr. Justice Blackburn, who spoke the preftent case ; and there is therefora for the nugority, said : * It 19 broadly no need to inquire how far it is accurate. * Nouvion V. Fi-eeman, 87 Ch. D. 244, C A. ; In re Trufort, 86 Ch. D. 600. SECT. J.] FOREIGN JUDGMENTS IN PEBSONAM. 261) What the effect might have been of a perverse disregard of the governing law, whether the law of England ^ or of auotljer country,^ was not considered ; though there ai'e indications that that would be a different case if it should ever arise.^ Indeed, the view taken in Grodard v. Gray in regard to error apparent on the very record of the proceedings was not readily accepted ; * though that case appears to have adopted the true rule. To permit error apparent, whether of fact or of law, if not perverse, to furnish ground for impeaching the judgment is much like abandoning the firm ground of the modem authorities ; for it is hard to see any real distinction between error apparent, if not merely clerical or arithmetical, and error proved ab extra. The • But the doctrine as laid down by Mr. British dominions where the law is not Smith does apply here, and we must that of England ? The French tribunal, express an opinion on it ; and we think if incidentally inqniring into the law of it cannot be supported, and that the de- Mauritius, where French law prevails, fendant can no more set up, as an ex- would be more likely to be right than the cuae relieving him from the duty of English court ; if inquiring into the law paying the amount awarded by the of Scotland, it would seem that there was judgment of a foreign tribunal having about an equal chance as to which took jurisdiction over him and the cause, the right view. If it was sought to en* that the judgment proceeded on a mis- force the foreign judgment in Scotland, take as to £nglish law, than he could the chance as to which court was right set up as an excuse that there had been would be altered. Yet it surely cannot a mistake as to the law of some third be said that a judgment shown to have country incidentally involved, or as to proceeded on a mistaken view of Scotch any other question of fact. It can law could be enforced in England and make no difference that the mistake not in Scotland, and that one proceed- appears on the face of the proceedings, ing on a mistakei^ view of English law That, no doubt, greatly facilitates the could be enforced in Scotland and not proof of the mistake ; but if the prin- in England.* ciple be to inquire whether the defend- ^ As in Godard v. Gray, in regard to ant is relieved from a prima facie duty mistake. to obey the judgment, he must be equal- > As in Meyer v, Ralli, 1 C. P. D. ly relieved Whether the mistake appears 858, also as to mistake, on the face of the proceedings or is to * Smith's L. C. 448, 2d £ng. ed., be proved by extraneous evidence. Nor quoted by Blackburn, J. supra ; Simp- can there be any difference between a son v. Fogo, 1 Hem. & M. 195 ; Liver- mistake made by the foreign tribunal as pool Credit Co. r. Hunter, L. R. 8 Ch. to English law, and any other mistake. 479, 484. See Castrique v. Imrie, L. B. No doubt the English court can without 4 H. L. 41 4, 445. arrogance say that, where there is a dif- * On thecontrary, seeReimersv. Druce, ference of opinion as to English law, 23Beav. 145; Messina v. P^^trococchino, the opinion of the English tribunal is L. R. 4 P. C. 144; Meyer v, Ralli, I probably right ; but how would it be if C. P. D. 858, 370. See also Simpson v, the question had arisen as to the law of Fogo, supra. Wood, V. C. ; Becquet «. some of the numerous portions of the MacCarthy, 2 Bam. & Ad. 951, 957. 264 ESTOPPEL BT BECOBD. [CHAP. TI. difliculty in the case under consideration arises^ of course, from the fact that the foreign court ought to have applied the govern- ing law ; but the test of conclusiveness should arise upon the question whether it attempted to do so or contemptuously re- fused,^ not whether there was a mistake apparent on the record in contrast with mistake to be shown by evidence aliunde. The early English dicta above referred to were for a Long time quite generally if not universally accepted by the courts of this country; the judgments of foreign countries, and judgments rendered in the sister colonies and states before the adoption of the Constitution and for a short time afterwards in many in* stances, were treated as only prima facie evidence of debt, liable to be disproved, like other evidence of that kind.* It will be seen that several of the cases cited as holding foreign judg- ments inconclusive are recent decisions. Only two of them, however, are direct adjudications to that effect, namely, Burn- ham V. Webster and Bankin v. Godard. The other recent cases (Middlesex Bank v. Butman and Taylor v. Barron) support the position only by dicta ; and all of the cases cited are founded on the early English dicta now overruled. In two of the cases just cited (Barney t?.' Patterson and Taylor v. Phelps) it is said that when foreign judgments are only incidentally involved, they have the same conclusiveness as domestic judgments ; and in Cummings v. Banks ^ it is said that all the American authori- ties agree in this proposition. The books contain few American cases in which the question of the conclusiveness of foreign judgments has been directly in- volved and decided. In the last case cited, and in Monroe v. Douglas,^ it was clearly intimated that they could i\ot be im- ^ See Castrique v, Imrie, L. B. i 240; WiUiams v, Preston, 3 J. J. H. L. 414, 445. Marsh. 600 ; Aldrich v. Kinney, 4 * Hitchcock V. Aicken, 1 Caines, 460; Conn. 380 ; Garland v. Tucker, 1 Bibh, Taylor v. Bryden, 8 Johns. 178 ; Pawl- 361 ; Pritchet v. Clark, 3 flar. (Del.) ing V. Bird, 13 Johns. 192; Bartlett v, 717 ; Clark v. Parsons, Rice, 16; Bim- Knijirht, 1 Mass. 400 ; Ruttrick v. A\- eler v. Dawson, 4 Scam. 536 ; Burnham Ipn, 8 Mass. 278 ; Bissell v, Briggs, 9 v. Webster, 1 Woodb. & M. 172 ; Mid- Mass. 462 ; Winchester v. Erans, dlesex Bank o. Batman, 29 Maine, 19 ; Cooke, 420 ; Glasgow v, Lowther, ib. Taylor v. Barron, 80 N. H. 78 ; Bankin 484 ; Taylor v, Phelps, 1 Hip. & G. v, Godard, 54 Maine, 28. 492 ; Barney t7. Patteison, 6 H;»r. & J. » 2 Barb. 602. 182; Benton v. Burgot, 10 Scrg. & R. « 4 Sand. Ch. 126. SECT. I.] FOREIGN JUDGMENTS IN PERSONAM. 265 peached on the merits. The point arose, however, in the recent case of Lazier v, Westcott^ in the Court of Appeals of New York. In a well-considered opinion Mr. Justice Davies, in pro nonncing the judgment, adopted the late English view, holding a jurlgtuent between the same parties, in favor of the same plaintiff, to be conclusive.^ The learned judge puts the opinion of the court upon the practical difficulties in the way of per- mitting the parties to open the judgment ; and language is used much to the same effect as that of the Court of Queen's Bench in a case already cited.* We have elsewhere borrowed the sug- gestion of Mr. Baron Parke in Williams v, Jones ^ to the effect 1 26 N. T. 146. appeal, upon the whole evidence f In * In the concluding portion of his a case of covenant, or of debt, or of a opinion he said : ' We think the rule breach of contract, are ail the circnm- adopted in England . . • should be stances to be examined anew ? If they adopted and adhered to here in respect are, by what laws and rules of evidence to such foreign judgments, and that the and principles of justice is the validity same principles and decisions which we of the original judgment to be tried ? have made as to judgments !h)ro the Is the court to open the judgment and courts of other states of the Union to proceed ex aequo et bono ? Or is it to should be applied to foreign judg- administer strict law, and stand to the ments.' The court relies much on the doctrines of the local administration of reasoning of Mr. Justice Story (Confl. justice? Is it to act upon the rules of Laws, § 607). ' It is indeed very evidence acknowledged in its own juris- di£Scnlt to perceive,* that authority prudence, or upon those of the foreign says, 'what could be done if a differ- jurisprudence? These and many more ent doctrine were maintainable to the questions might be put to show the in- full extent of opening all the evidence trinsic difficulties of the subject. In- and merits of the cause anew on a suit deed, the rule that the judgment is to apon the foreign judgment Some of be prima facie evidence for the plain- the witnesses may be since dead ; some tiff would be a mere delusion if the of the vouchers may be lost or de- defendant might still question it by stroyed. The merits of the cause as for- opening all or any of the original merly before the court upon the whole merits on his side ; for under such cir- evidence may have been decidedly in cumstances it would be equivalent to favor of the judgment ; upon a partial granting a new trial.* possession of the original evidence they ^ Bank of Australasia v. Nias, 16 may now appear otherwise. Suppose Q. 6. 717. See Fei^uson v. Mahon, 11 a case purely sounding in damages, such Ad. & E. 179. as an action for an assault, for slan- * 18 Mees. & W. 628, 683, quoted der, for conversion of property, for a with approval in Godanl v. Gray, L. R. malicious prosecution, or for a criminal 6 Q. 6. 189, 148 ; ante, p. 288. As to conversation; is the defendant to be at the circumstances under which a duty liberty to retry the whole merits, and to obey the foreign judgment arises, see to make out, if he can, a new case upon Ronsillon v, Rousillon, 14 Ch. D. 851, new evidence ? Or is the couit to re- 870. See also Copin v. Adamson, view the former decision, like a court of H £• 9 £x. 846. 266 ESTOPPEL BT BECOBD. [CHAP. YI. that a foreign judgment for a plaintiff raises a binding obligation to pay the same ; and we have added that whatever the nature of the judgment, if the court had properly acquired jurisdiction, judgment and findings should follow in their conclusive charac- ter the law of the forum in which the proceedings were had, not as mere matter of comity, but because the proper authorities have fixed their effect The foreign law ought to apply to a judgment pronounced according to it as well at least as to a contract made under it § 2. Constitutional Provision : Judgments of Sister States. We proceed now to consider the second and more important branch of our subject, judgments in personam of the sister states of the American Union. Prior to the adoption of the Articles of Confederation the American colonies or (as they became by the Declaration of In* dependence) states were considered as foreign to each other by their courts in respect of the conclusiveness of their judgments ; and the English doctrine as it was then understood prevailed, to wit, that such judgments were only prima facie evidence of debt But the inconvenience of the rule was felt even at this early day, when intercourse and traffic between the colonies were comparatively limited. Accordingly, in at least one of the colo- nies, that of Massachusetts Bay, an act was passed ^ as early as in the year 1773, which provided that the judgments of courts of the neighboring colonies should be conclusive when sought to be enforced in Massachusetts, provided the courts which rendered them had jurisdiction.^ The fact that the act extended only to the judgments of the neighboring colonies indicates that it was passed more from con* siderations of utility than from motives of comity ; for if the latter idea had prompted the legislation, it would have included at least all of the English-speaking provinces. But the fact was there was but little intercourse between the distant colonies and those of New England, and there was no occasion to make the act general. Subsequent events, however, increased the inter- ^ Proyincial Act of 14 Geo. 8, c 2. * Binell v. Briggs, 9 ICass. 462. SECT, n.] FOREIGN JUDGMENTS IN PERSONAM. 267 course; and it became necessary to make some geiiei*al law suited to the new state of things. To this end a provision was made in the Confederation in these words : ' Full faith and ci*edit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state/ Though the object of this clause seems now obvious, its language was not thought sufficiently fuU and clear ; and it was therefore slightly changed in the final draft of the Constitution, and made to read as fol- lows : ' Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.' ^ In pursuance of the power thus granted. Congress passed the act of May 26, 1790, which after providing the manner of au- thentication declared that 'the said records and judicial pro- ceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.' The first section of the supplementary act of March 27, 1804, contained a further provision relating to the attestation of rec- ords from the sister states, followed by a clause identical with the one just quoted ; and the second section of the act extended these provisions over the ' territories of the United States and the countries subject to the jurisdiction of the United States.' As has been already observed, there was at an early day in the history of the United States some confusion concerning the construction of this provision of the Confederation and Consti- tution, and of the acts passed in pursuance. Before the decision in the celebrated case of Mills v. Durvee* had been made and beoome known the general current of construction was that the act of Congress had not changed the rule so generally received before that time, to wit, that the judgments of the sister colo- nies and states were only prima facie evidence,^ though this 1 r'onst. IT. S. art. 4, § 1. • Hitchcock r. Aicken, 1 Cainei*, ' 7 Cranch, 481. 460 ; Pawling v. Bird, 18 Johns. 192 ; 268 ESTOPPEL BY RECORD. [CHAP. YI. was by no means nniversal.^ But the case referred to, and the contemporaneous case of Bissell v, Briggs, cited in the note, changed the current even in the states which had adopted the doctrine just mentioned. As the matter was one depending upon a proper construction of the Federal Constitution and of an act of Congress, deference was justi}'' and readily yielded by the state courts to the judgment of the Supreme Court of the United States.* MiUs V, Duryee was an action of debt upon a judgment of the Supreme Court of New York, in the Circuit Court for the District of Columbia. The defendant pleaded nil debet, which upon general demurrer was held bad. On appeal to the Su- preme Court of the United States counsel for the plea contended that the true construction of the constitutional provision and acts of Congress confined their operation to evidence only, and did not alter the rules of pleading. The ' effect ' to be given to the copies of records was their effect as evidence ; for it was not contended that an execution could issue there upon such a record. Counsel further argued that nul tiel record could not be pleaded because there was no way of procuring and inspect- ing the original record. This could not be pleaded upon a copy because that would give it greater credit than it would receive in New York. Counsel on the other side admitted that the record was to have effect only as evidence ; but it was evidence of the highest nature, namely, record evidence, to which nil debet was a bad plea. In answer to the argument that a copy was not of the same dignity with the original, the act of Con- gress was referred to as making the authenticated exemplifica- tion equivalent to the original record in its proper state, and as communicating to it the same effect as evidence, making it capable of sustaining the same averments in pleading and ot Winchester v. Evans, Cooke, 420 ; and ' See cases cited below passim ; and other cases cited ante, p. 264. see Insurance Co. v. Harris, 97 U. S> '^ Noble V. Gold, 1 Mass. 410, note ; 831. Judgments of the courts of record BisseU V. Briggs, 9 Mass. 462 ; Arm- of the District of Coinmbia, at least strong 9. Carson, 2 Dall 802 ; Curtis v. judgments of the Su])reme Court of the Gibbs, 1 Penn. (N.J.) 399 ; Green v. district, stand upon the footing of judg- Sarmiento, Peters C. C. 74 ; Blount v. ments of a state court. Embrey .«. Darrach, 4 Wash. C. C. 657 ; Turner Palmer, 107 U. S. 8, 10. V. Waddington, 3 Wask C. C. 126. SECT. II.] FOREIGN JUDOMENTS IN PEBSONAM. 269 abiding the same tests as the original record. It therefore could not be denied or controverted by any plea, such as nil debet, which put in issue the matters averred by the record ; but the defendant should have either distinctly denied the record, or avoided it by pleading satisfaction. It was immaterial that the ministerial officers of the law in the district could not issue an execution upon the authenticated record, for that objection would be equally valid against the record when used in its proper state but out of the jurisdiction of its proper court, and also against the sentences of foreign courts of admiralty under the law of nations. The court adopted the view of the plain- tiff's counsel that the effect of the Constitution and acts of Congress was to give the authenticated exemplification the con* clusiveness of the highest or record evidence; to which the proper plea was nul tiel record.^ It will be observed that the court based the decision of the conclusiveness of the judgment rendered in New York upon the doctrine that under the Constitution and act of Congress it was record evidence ; and that nil debet by the common-law ^ ' Ck>Dgre8S,* he said, ' have declared rendered. But it has no foundation, the tffed of the record by decUring The right of a court to issue execution what faith and credit shall he given depends upon its own powers and or- to it.' In regard to the defendant's ganization. Its judgments may be second point he said that the record complete and |)eifect, and have full ef- niight * be proved in the manner pre- feet, independent of the right to issue scribed by the act, and such proof is of execution.' In conclusion the learned as high a nature as an inspection by judge says : * Were the construction the court of its own record, or as an contended for by the plaintiff in error exemplification would be in any other to prevail, that judgments of the state court of the same state. Hadthiajudg- courts ought to be considered prima ment been sued in any other court of facie evidence only, this clause in the New York, there is no doubt that nil Constitution would be utterly unim- debet would have been an inadmissible portant and illusory. The common plea. Yet the same objection might be law would give such judgments pre- niged, that the record could not be in- cisely the same effect. It is manifest, spected. The law, however, is undoubted however, that the Constitution contem- that an exemplification would in such plated a power in Congress to give a case be decisive. The original need not conclusive effect to such judgments. be produced.* To the argument that And we can perceive no rational inter- execution could not issue directly on the pretation of the act of Congress unless judgment of a sister state he replied : it declares a judgment conclusive when •This objection, if it were valid, would a court of the particular state where it equally apply to every other court of is rendered would pronounce the same the same state where tiie judgment was decision.' 270 ESTOPPEL BY RECOBD. [CHAP. VI. system of pleading was an inadmissible plea in such a case. Mr. Justice Johnson seemed to understand the court as holding that nul tiel record was the only plea to be pleaded to an action of this kind ; and as such a plea at common law would put in issue only the existence of the record, no inquiry could be made under any circumstances even into the jurisdiction of the court of the sister state. He was not in favor of so sweeping a rule. Though not opposed to holding the judgments in question con- clusive of the merits, i. e. of the subject-matter and ground of the original action, he objected to a rule which (he supposed) would preclude all inquiry into the jurisdiction. The learned judge was not alone in thus construing the opinion of the majority of the court. Other courts at first supposed that the Supreme Court of the United States had pronounced the same rule.^ If this was the intention, the rule has been modified, as we shall see, by later decisions of the same court, which hold that there is no estoppel in ordinary cases to deny the jurisdic- tion of the court which rendered the judgment sued upon.* But it has been maintained with great force that the court in Mills V, Duryee only intended to declare that nul tiel record was the proper general issue, and did not mean to preclude parties from pleading special pleas to the jurisdiction.* Whatever the court really meant to declare upon that point, it was agreed that the merits of the judgment sued upon were not open to inquiry ; and this is all that we care to notice at present The same question involved in Mills v. Duryee arose a few years later in Hampton v. McConnel ^ in an action in South Carolina upon a judgment of the Supreme Court of New York. The same plea of nil debet was entered and overruled in the court below, and the decision of that court sustained by the Supreme Court of the United States ; Chief Justice Marshall delivering the opinion, and declaring that only such pleas could * Commonwealth v. Green, 17 Mass. Cheever v. Wilson, 9 Wall. 108 ;Thomp- 615, 646 ; Hall v, Williams, 6 Pick. 232, son v. Whitman, 18 WaU. 467 ; poet, p. 243. See Carleton v. Bickford, 1 3 Gray, 296. 691. * Shnmway r. Stillman, 4 Cow. 292 ; « D*Arcy v. Ketchum, 11 How. 165 ; 8. o. 6 Wend. 447. Christmas v. Russell, 6 Wall. 290 ; « 8 Wheat. 234. SECT. IL] foreign JUDGMENTS IN PERSONAM. 271 be pleaded as would be good to an action upon the judgment-. in the domestic courts.^ The provision of the Constitution, as expounded in Mills v. Duryee, has undergone minute examination ; this we shall now see. In a subsequent case before the same court the question arose whether, under the Constitution and act of Congress, the Statute of Limitations of Georgia could be pleaded to an action in that state founded on a judgment rendered in South Carolina. It was the opinion of the court that the provisions upon the subject were intended only to preclude inquiry into the subject- matter of the judgment ; and that therefore the Statute of Limita- tions, not being a plea to the merits, was an admissible plea.^ ^ See Griffin v. Eaton, 27 111. 879, in which snch acts, records, and pro- holding that if technicalities have been ceedings shall be proved, and the effect abolished in the sister state, they must thereof, that the latter clause, as it re- not be nsed to defeat the judgment else- lates to judgments, was intended to pro- where. Bat judgment rendered in a vide the means of giving to them the nater state can of course have no conclusiveness of judgments upon the greater effect than it would have where merits when it is sought to carry them rendered. into judgments by suits in the tribunals > McElmoyle v. Cohen, 13 Peters/ of another state. The authenticity of 812. See Jones v. Drewry, 72 Ala. 811 a judgment, and its effect, depend upon (non-claim) ; Matoon v, Clapp^ 8 Ohio, the law made in pursuance of the Con- 248. The learned judge who delivered stitution ; the faith and credit due to it the opinion in McElmoyle v. Cohen, as the judicial proceeding of a state is Mr. Justice Wayne, said : ' Though a given by the Constitution independently judgment obtained in the court of a of all legislation. By the law of 26th state is not to be regarded in the courts of May, 1790, the judgment is made a of her sister states as a foreign judg- debt of record not examinable upon its ment, or as merely prima facie evidence merits ; but it does not cany with it of a debt to sustain an action upon the into another state the efficacy of a judg- judgment, it is to be considered only ment upon property or persons to be distinguishable from a foreign judgment enforced by execution. To give it the in this, that by the first section of the force of a judgment in another state it fourth article of the Constitution, and must be made a judgment there, and by the act of May 26, 1790, § 1 (1 Stat, can only be executed in the latter as its at Large, 122), the judgment is a record, laws may permit. It must be conceded conclusive upon the merits, to which that the judgment of a state court can- full faith and credit shall be given, not be enforced out of the state by an when authenticated as the act of Con- execution issued within it. This con- gress has prescribed. It must be ob- cession admits the conclusion that . . . vious, when the Constitution declares judgments out of the state in which that full faith and credit shall be given they are rendered are only evidence in in each state to the public acts, records, a sister state that the subject- matter of and judicial proceedings of every other the suit has become a debt of record state, and provides that Congress may which cannot be avoided but by the by general laws prescribe the manner plea of nul tiel recoi'd. But we need 272 ESTOPPEL BY RECORD. [CHAP. VI. But ' full faith and credit ' must be given to the judgment ; and if binding where it was rendered, it cannot be made of no effect in another state by any Statute of Limitation there enacted touch- ing the original cause of action, even towards the citizens only of that state.^ On the other hand, it has been considered that if a judgment were barred by limitation in the state in which it was rendered, it cannot be sued upon in another state.^ In a late case in Maine it appeared that the indorsee of a note had sued the maker in Massachusetts. The defendant pleaded payment and the Statute of Limitations, and obtained a general verdict in his favor. After this judgment the payee in some way obtained not doubt what the framen of the Con- of record, to be contested only in such stitution intended to accomplish by that way as judgments of record may be ; section, if we reflect how unsettled the and consequently are conclusive upon doctrine was upon the effect of foreign the defendant in every state except for judgments, or the effect rei judicate such causes as would be sufficient to set throughout Europe, in England, and in aside the judgment in the courts of the these states, when our first Confedera- state in which it was rendered. In tion was formed. On the Continent it other words, as has been said by a corn- was then and continues to be a vexed mentator upon the Constitution : " If a question, determined by each nation ac* judgment is conclusive in a state where cording to its estimate of the weight of it is pronounced, it is equally conclusive authority to which different civilians everywhere in the states of the Union.** and writers upon the law of nations are Story, Const § 183. It is, therefore, put entitled. ... In these states when upon the footing of a domestic judg- colonies the same uncertainty existed, ment; by which is meant, not having When our Revolution began and inde- the operation ^and force of a domestic pendence was declared, and the Confed- judgment, but a domestic judgment as eration was being formed, it was seen to the merits of the claim or subject- by the wise men of that day that the matter of the suit.* See also Green v. powers necessary to be given to the con- Sarmiento, Peters C. C. 74 ; and see federacy, and the rights to be given to especially the ground taken in Jones v. the citizens of each state in all the Drewry, 72 Ala. 811, where a local stat- states, would produce such intimate re- uteof non-claim was successfully pleaded lations between the states and persons to an administration decree obtained in that the former would no longer be for- Virginia. eign to each other in the sense that ^ Christmas v. Russell, 5 Wall. 290, they had been as dependent provinces ; holding a statute of Mississippi of the and that for the prosecution of rights in kind unconstitutional. See post^ p. courts it was proper to put an end to 282. the uncertainty upon the subject of the ^ David v. Porter, 61 Iowa, 254. effect of judgments obtained in the dif- The judgment in question in this case ferent states. . . . What faith and (rendered in Nebraska) was, however, credit then is given in the states to the deemed to be merely ' dormant ' in judgments of their courts? They are Nebraska, and an action upon it was record evidence of a debt, or judgments allowed. SECT. II.] FOREION JUDGMENTS IN PERSONAM. 278 possession of the note and brought suit against the maker in Maine. The latter pleaded the judgment rendered in Massachu- setts; whereupon the plaintiff offered evidence to show that that judgment had been rendered upon a plea of the Statute of limitations. The court held the evidence inadmissible, saying that it was immaterial whether the verdict was given upon that ground or upon the plea of payment. The judgment was con- clusive in Massachusetts, and must therefore be conclusive in Maine. The note had also ceased to be negotiable by the judg- ment, having passed into the custody of the court.^ The Constitution does not require courts to give effect to dis- qualifications entailed in a sister state upon conviction of crime.^ A contrary view has been medntained in North Carolina, where it is held that a witness incompetent by conviction for a crime in a sister state is incompetent to testify in the courts of North Caro- lina^ Nor under the Constitution does a judgment rendered in a sister state rank as a domestic judgment in marshalling assets. It has no effect in this direction.^ It has also been held in a late case that the courts of one state may restrain a party from proceed- ing to enforce a judgment obtained in another state, where the de- fendant had been fraudulently led to believe that the suit in the sister state had been abandoned ;^ but the doctrine is not settled.^ Nor does the Constitution require any state to enforce the police regulations of another, or qui tam actions and the like. But when the courts of another state have taken cognizance of a matter of local police regulation, the judgment is entitled to full faith and credit throughout the Union, and will entitle the plaintiff to maintain an action thereon though such regu- lations could not be enforced out of the state by an original action. And the courts of the state in which the judgment is sued upon will hold the same conclusive of the merits.^ Again, I Sweet V, Brackley, 58 Maine, 846. * Engel v, Schenennaii, 40 Ga. 206. s Common wealth o. Green, 17 Mass. So Pearce v. Olney, 20 Conn. 544. 614. • Post, pp. 802-805. < State V. Candler, 8 Hawks, 893. ^ Indiana v. Helmer, 21 Iowa, 870 ; 4 McElmoyle v. Cohen, 18 Peters, Healy v. Boot, 11 Pick. 889. In the 812 ; Cameron v. Wnrtz, 4 McCord, case first cited for this proposition the 878 ; Brengle r. McClellan, 7 Gill & J. action was hased upon a judgment ren- 484 ; Harness v. Green, 20 Mo. 816. dered in another state in accordance 18 274 ESTOPPEL BY RECORD. [CHAP. VI. it is held that the Constitution has no reference to matters sub- sequent to the judgment, such as issuing and returning execu- tion thereon, and that the same faith is not due to these as to the judgments of sister states.^ § 3. Application of Bule of lies Judicata. We turn now to the consideration of these judgments of sister states in their more specific relation to the rule of res judicata. In the first place it may be insisted that the judg- ment shall have no more than its proper efTect of res judicata.' The case first cited was an action upon a joint judgment of a sister state, from the record of which it appeared that a defend- ant therein, not sued in the present action, had not been served with process in the first suit. In most of the cases which have occurred upon this subject the defendant who was not served has raised the objection, but in this case the defendant who was properly before the court was alone sued in the second instance, and raised the objection, and the court sustained it Mr. Jus- with a statute of that state prescribing an action for any other penalty pro- proceedings to enforce the support of vided by statute of such sovereignty for bastard children by the father. To the the wrongful act of a defendant therein, objection that this was a proceeding Both are alike matters of local internal to enforce a mere police regulation of police, and enforceable alone by the another state, the court replied : ' There sovereignty making the regulation and is much truth in the legal proposition providing the penalty. But where the upon which this claim rests ; but the local jurisdiction has attached, and the error is in its application. If the mother courts of that state or sovereignty have of a bastard child, begotten and bom in properly taken cognizance of the matter, the state of Indiana, had come to Iowa and rendered judgment for such penalty, and sought legal proceedings to compel such judgment is entitled to " fuU faith the defendant, its father, to support it and credit " in every other state. . . . and to give bond therefor and otherwise And the courts of such other state wUl comply with the requirements of the not inquire into the facts upon which it statutes of Indiana, the answer of the was based, nor whether the cause of defendant, that the subject-matter of action would have been enforced by such action was one of merely local them.' police regulation of Indiana not enforce- ^ Carter v, Bennett, 6 Fla. 214. able in this state, would have been con- * Smith v. Smith, 17 111. 482 ; Can- elusive, and amounted to a complete de- dee v, Clark, 2 Mich. 255 ; Knapp t^. fence. Graham v. Monsergh, 22 Yt. Abell, 10 Allen, 485 ; Hall v. Williams, 548. Such an action can no more be 6 Pick. 282 ; Rangely v. Webster, 11 sustained beyond the limits of the aov- K. H. 299 ; Jones v. Gerock, 6 Jones ereignty within which it arose than can £q. 190* SECT. III.] FOREIGN JUDGMENTS IN PERSONAM. 275 tice Caton said : ' While he may not deny that it is a judgment against him, he may deny that it is a judgment against him and HalL'i In the case of Jones v. Gerock, above cited, the complainant filed a bill in chancery in North Carolina for dower and a dis- tributive share. The defendants objected that she bad filed a bill for the same purpose in Alabama, and had obtained a decree granting to her both objects ; that her claim for a distributive share had been fully satisfied ; and that in the case of the dower she had had lands of her husband laid off to her, in conformity to the decree. They therefore contended that she was estopped to maintain her present suit. But the objections were overruled. The court said that it did not understand the decree rendered in Alabama as embracing any property not in that state. As for the personal property, it would be necessary that it should be administered under the orders and authority of the courts of North Carolina, and that the courts of Alabama could exercise no control over it And in respect of the decree for dower the court considered it as having reference to lands in Alabama only, so that those set off could not amount to a full satisfaction of the widow's claim. On the other hand, in attributing to judgments rendered in a sister state the full force of res judicata the courts are bound, by the very language of the act of Congress, — though it has required the highest court to enforce the fact, — to treat such judgments, supposing no question of jurisdiction to arise, as they would be treated, in point of conclusiveness, in the state in which they were rendered.* Thus, judgment rendered in 1 SeealsoSuydamv. Barber, 18 N.Y. reversing Wilbur v. Abbot, 60 N. H. 468 ; Beed v. Girty, 6 Bosw. 567. In 40 ; Hanley v. Donoghue, 116 TJ. S. 1, Brown v, Birdsall, 29 Barb. 549, Mr. 8, citing Maxwell v, Stewart, 22 Wall. JoBtice Booeevelt says : * Where joint 77 ; Insurance Co. ». Harris, 97 IT. S. debtors reside in different states, they SSl ; Green v. Van Buskirk, 7 Wall, may be sued separately in the respective 189 ; Cooper v. Reynolds, 10 Wall. 308. states having jurisdiction of their re- See also Richards v. Barlow, 140 Mass. spective persons or property, and a judg- 218, to the same effect. These deci- ment in such case against one in one sions explode the specious notion that state is no bar to a recovery against the a foreign judgment can be no better others in another state.' than a domestic judgment in the same * Benaud v. Abbot, 116 U. S. 277, case. 276 ESTOPPEL BY RECORD. [CHAP. VL Louisiana, valid by the laws of that state, against one of several joint debtors, the others not being served or within the juris- diction of the court, is valid in New Hampshire, when suit is brought upon it, though such a judgment would be void by the laws of the latter state.^ In like manner, the record of a judg- ment in a sister state in favor of the plaintiff establishes con- clusively, not only the right of action, but also the right of the plaintiff to sue in the capacity in which he brought the original suit For only such pleas as would be good to an action upon the judgment in the sister state may be pleaded elsewhere. A plea to the capacity of the plaintiff to sue, for example, as a lunatic, by next friend, would be a plea in abatement, proper only in the original action ; and if not then pleaded, it could not be pleaded to a suit upon the judgment in that state or consequently in any other.* Again, it has been held that the omission by the plaintiff in a suit in another state upon a penal bond to assign breaches and have the damages assessed by a jury, in a judgment by default, cannot be alleged as a defence to a suit upon the judgment ren- dered in the case.^ So too it is said that where it appears that the plaintiff might have insisted upon his right to recover upon aU grounds relied upon in a new suit by him in another state, the former judgment against him will be conclusive.* He can- not withhold his evidence and then sue again upon the same demand.* A judgment rendered in a sister state, however, can no more than a domestic judgment^ bar an independent demand, though springing from the same ground as the former suit.^ Thus, the fact that a decree of divorce merely has been pronounced will 1 Renaud v. Abbot, 116 U. S. 277 ; « Goodrich v, Jenkina, Wright, 848; Hanley v, Donoghue, ib. 1. Such laws s. c. 6 Ohio, 44. Gomp. ante, p. are valid. Ibid. 78. s Cook 9. Thonihill, 18 Tex. 293 ; * Baker r. Rand, 18 Barb. 152. Wayland v. Porterfield, 1 Met. (Ky.) * Ibid. 638. So, a judgment for a party, ren- • Ante, pp. 174 et seq. dered in another state, is conclusive ^ See ante, pp. 174-186, in regard to evidence of the existence of that party this rule as applied to domestic jndg- at the time of the rendition of the judg- ments. The application of the nde to ment. Cook v. Steuben Bank, 1 6. cross-demands is there considered. Greene (Iowa), 447. SECT. III.] FOREIGN JUDGMENTS IN PERSONAM. 277 not estop the wife from suing for alimony in another state if that matter has not been litigated in the first suit, though this second suit by the wife be one for divorce as well as alimony, based upon an allegation that the former decree, obtained by the husband, was illegal And this too though the bill is dis- missed so far as it prays for divorce. But a decree for alimony in this second suit 'will preclude the husband from contesting the claim in a third suit, brought by the wife in another state, based upon the decree for alimony.^ In the case cited for this proposition a husband had sued in Kentucky for divorce. The wife appeared and defended, but the court decreed in favor of the husband. Afterwards the wife sued the husband in the courts of Ohio, where the parties then resided, for a divorce arid alimony ; alleging that the decree in Kentucky was void by reason of want of jurisdiction in that the husband was not a resident of Kentucky at the time of the decree ; also that the decree had been obtained by fraud. These allegations were traversed, and the Kentucky decree set up as an estoppel The court in Ohio, however, decided that the decree had been legally rendered, and by a court of competent jurisdiction; but that, inasmuch as the Kentucky court had made no provision out of the estate of the husband for the support and maintenance of the wife, and as the propriety of so doing had not been adjudi- cated upon in that case, the husband should pay the wife the sum of $3,000 alimony. The money not having been collected in Ohio, the wife sued upon the decree in Kentucky to subject certiaJn property of the husband to the payment of the alimony. The defendant again relied upon the first decree, rendered at his own suit in Kentucky, and insisted that the Ohio court had no jurisdiction over the subject-matter, and that its decree was thereforer void. In regard to this question it was held, in ac- cordance with a familiar doctrine, that as the husband had appeared in the Ohio suit aud contested the claim of the wife, the court had jurisdiction both of the person and subject-matter;* and the wife prevailed. ^ Rogers o. Rogers, 15 B. Mod. 864. Ohio decree had been pronounced in See McGall v. Carpenter, 18 How. 297. utter disregard of the previous decree in ' It WBfl also contended that the Kentucky between the parties. Upon 278 BSTpPPEL BY BECOBD. [CHAP. VI. Two or three other special points touching the application of the rule of res judicata in relation to these judgments of courts this point the court, speaking by Mr. effect assume an authority which can Justice Simpson, said : ' If the decree only be legitimately exercised by a which had been pronounced in the suit court having some jurisdiction over the between these parties in the Kenton judgment first rendered. As no sucli Circuit Court, in this state, was thus jurisdiction is vested in the courts of comprehensive, and had the legal effect any of the s^tes over the judgments attributed to it in this argument, then reudered by the courts of other states, it would seem to follow that, so far as it follows that its assumption would be the court in Ohio undertook to modify unauthorized, and the action of the or change it, its action was revisory ; it court in its exercise utterly void and was exercising an appellate jurisdiction unlawful. But while the correctness which did not belong to it ; and conse- of this doctrine is conceded, its applica- quently its decree was void for want of bility in the present case is the point to jurisdiction. We suppose the position be determined. . . . Nothing was alleged will not be controverted that so far as [in the first suit] by either party in re- the courts of any of the states might lation to the husband's estate, nor was attempt to change or alter, the judg- there any claim for a portion thereof ments or decrees of another state upon presented by the wife in the event that the ground that the decision of the case the husband should succeed in obtain- was erroneous, they would be assuming ing a divorce. Her right to it in that the exercise of a jurisdiction that does event was not, therefore, put in issue nor not belong to them, and their action in decided by the court unless the decree the premises would be wholly invalid, which was rendered granting a divorce In illustration of this principle we will to the husband had the legal effect at- suppose that an issue had been made tributed to it of absolving the husband and fairly tried in a court of competent and his estate from all liability to con- jurisdiction in this state, and a final tribute anything towards the support of judgment rendered between the parties the wife.' After showing that the stat- on the matters involved in the issue, ute upon the subject did not have this and that afterwards one of the parties effect he proceeds : ' Whether the wife, had attempted to relitigate the same having failed to present her claim for a matters, between the same parties, in portion of the husband's estate to the one of the courts of a sister state, hav- court granting the divorce, would be ing jurisdiction in similar cases, and thereby precluded from asserting it in a the court there should permit it to be subsequent action against the husband, done, and should render a judgment in it is unnecessary to determine. It is conflict with the one which had been sufficient for the purposes of the present previously rendered by the court in this inquiry that the matter was not res state. Would such a judgnjent be valid judicata, and consequently that the in either state ? Would not the court court in Ohio, in the decree which it that rendered it have virtually assumed, rendered, did not undertake to retry an in sustaining the right of one of the issue which had been previously decided parties to retry the same matters which by a court of competent jurisdiction in had been previously decided, a revisory this state. If it were conceded that the jurisdiction over the judgment of a wife, by her failure to present her claim court of another state ? The power to to a portion of the estate of the hus- relitigate the same matters might not band in the suit in which the divorce be expressly put upon this ground ; but was granted, ought to be thereby pre- a court that undertakes to do it does in eluded from asaertlDg it in another ao* SECT. III.] FOREIGN JUDGMENTS IN PEBSONAM. 279 of the sister states may be noticed. It is not a good plea to an action against executors founded on a judgment rendered in a sister state that there never were any assets of the testator in that state ; for as the judgment there would have been effectual to authorize execution against any assets which the defendants might at any time thereafter have possessed^ so it would be sufficient to authorize judgment against them when sued upon elsewhere, and execution upon any assets to be found by virtue of the judgment in the second action.^ In a suit for an injunction by a principal against a surety to restrain the latter from selling certain property of the former which the surety claimed had been forfeited by the failui'e of the principal to carry out an agreement for the rent of a hotel, the principal offered evidence received on a former trial between the parties, to the effect that the hotel property had become un- tenantable, contrary to the agreement with the lessor, ^whereby he had been compelled to abandon the property before the lease expired, and without rendering himself liable to the lessor for the reason named. The surety, thinking him liable, had effected a settlement with the lessor by paying him several thousand dollars, on account of which he was proceeding to sell the prop- erty in question. To rebut the testimony offered by the com- plainant, that he had incurred no liability in abandoning the hotel, the defendant surety introduced the record of a judgment rendered in another state, in a suit between the present com- plainant and the lessor of the hotel property, wherein it was decided that the former was not justified in abandoning the property, and that he was liable on the lease for the rent of the unexpired term. The court held that this concluded the tion, it wonld not follow that the decree cision ; and whatever may he correct rendered hy the court in Ohio would concerning the first position, that the for that reason he invalid, or he void court in Ohio had rightly' entertained for want of jurisdiction. The most the prayer for alimony, it cannot he that could he urged against it on that douhted that, having passed upon the ground would he that it was erroneous ; question, it must have heen considered until reversed, however, or if it he irre- as conclusive in all other courts of the versihle, it is entitled to the same con- Union, in accordance with the provi- sideration and has the same legal force sions of the Constitution and act of and effect of any other valid decree.' Congress. The latter point, we apprehend, was ^ Davis v, Connelly, 4 B. Mon. the main one relied upon for the de- 180. 280 ESTOPPEL BY BECOBD. [CHAP. VI. priDcipal upon his liability, that the settlement between the surety and lessor was therefore proper, and denied the in- junction to restrain the surety from selling the property in question.^ A similar case is reported from the Supreme Court of New York.2 In that case the owner of a vessel in New York became indebted to another, who seized his vessel in Ohio under a stat- ute of that state. The present plaintiff became surety in a bond for the release of the vessel. The principal debtor defended the suit, but judgment was rendered against him, and the plaintiff, his bondsman, was compelled to pay the amount. In the pres- ent suit by the latter against his principal for reimbursement the record of the judgment in Ohio was held conclusive of the valid- ity of the claim, and of the seizure and proceedings. Nor can error of fact in the enrolment be set up collaterally against the judgment In the case of Hassell v. Hamilton ^ the plaintiff suing to recover a slave, and deriving title through a decree of the Supreme Court of Tennessee, endeavored to show that that court had made a mistake in decreeing to him title to another slave of the same name as the one he was now suing for ; and that the mistake and real intention of the court appeared clearly both from the whole record and the matter adduced in evidence at the present trial. But the court replied that the alleged mistake could not be noticed in the courts of another state; nor could such courts reform a decree of a sister state so as to make it speak the unexpressed intention of another court. In a case in the Supreme Court of Iowa ^ the defendant to an action upon a judgment rendered in a sister state endeavored to show that the judgment was void because rendered upon a con- tract made while he was a minor, and not for necessaries, and that he did not appear by guardian, but by attorney. But the court said that the defendant's remedy was by a writ of error coram nobis, or some similar process, in the court of the sister state. If there was error in fact, it was an irregularity merely, 1 Destrehan v, Scudder, 11 Mo. 484. ^ Milne v. Van Buskirk, 9 Iowa 3 Stedman v. Patchin, 84 Barb. 218. 558. » 33 Ala. 280. SECT. III.] FOREIGN JUDGMENTS IN PERSONAM. 281 and could no more affect the validity of the judgment than if it had been an error of law. In neither event woidd the error render the judgment void ; it would render it only erroneous, and until set aside in the state where rendered it was not liable to impeachment elsewhere.^ In an action upon a judgment for costs, rendered in another state, the defendant attempted to impeach the judgment by showing that the counsel who brought the suit in his name, and conducted it to its termination, did not file his warrant of attorney. The Supreme Court of Pennsylvania ruled that though this might have been ground for an application to open the judgment in the state where it was declared, or for a writ of error, or for an action against the attorney, it was no ground whatever for impeaching the judgment in a collateral action.^ A decree in favor of the complainant, rendered in Virginia, was offered in evidence between the same parties in a suit in regard to the same matter in Louisiana, and its admission stren- uously contested on grounds of irregularity and fraud. The court below rejected the decree, but that ruling was reversed on appeal, and judgment given in accordance with the Virginia decree. This judgment having been but partly satisfied in Loui- siana, suit was again instituted in Virginia, when the defendants again attempted to impeach the first decree. But the court, relying upon the judgment pronounced in Louisiana, refused to consider the attack upon it.' Judgment of a sister state court having recognized jurisdic- tion is valid and conclusive elsewhere, and cannot be brought in 1 See ante, p. 116 ; also Wejr v. Boyd, 27 Miss. 473 ; Conway r. EUison, Zane, 3 Ohio, 806 ; Goodrich v. Jenkins, 14 Ark. 360 ; Baford v. Eirkpatrick, 8 Wright, 348 ; Riley v. Murray, 8 Ind. £ng. 33. 854 ; McLendon v. Dodge, 32 Ala. ^ Rogers o. Bums, 27 Penn. St. 525; 491 ; Gunn r. Howell, 35 Ala. 144 ; Cyphert v. McClune, 22 Penn. St. 195; Hastell V. Hamilton, 33 Ala. 280 ; Tay- Coze v. NichoUs, 2 Yeates, 546 ; Den- lor V, Kilgore, ib. 21 4 ; Hart v. Cnm- ton v. Koyes, 6 Johns. 296 ; Compher mins, 1 Clarke (la.), 564 ; Struble v. v. Anawalt, 2 Watts, 490. Malone, 3 Clarke (la.), 586 ; Milne v. > De Ende v, Wilkinson, 2 Pat. & Van Buskirk, 9 Iowa, 558 ; Indiana H. 663 ; Rogers v. Rogers, 15 B. Mon. V. Helmer, 21 Iowa, 370 ; Baninger v, 864. 282 ESTOPPEL BY RECORD. [CHAP. YI. question even in a state in which it is declared by statute that a judgment of the kind shall not be binding upon the citizens of that state ; such statute being deemed in contravention of the Constitution of the United States. Thus, in a case before the Supreme Court of the United States it appeared from the record that the plaintiff had recovered a valid judgment in Kentucky upon a promissory note, and had sued subsequently upon this judgment in Mississippi. The defendant relied upon an act of the legislature of the latter state, whereby it was declared that no action should be maintained on any judgment rendered with- out the state against a resident of the state, in any case where the cause of action would have been barred had the suit been brought in Mississippi. The case in question came within the language of this act ; and the Supreme Court of the United States declared the same unconstitutional and void. * Beyond all doubt,' the court observed, ' the judgment was valid in Kentucky, and conclusive between the parties in all her tribunals. Such was the decision of the highest court of the state, and it was undoubtedly correct; and if so, it was not competent for any state to authorize its courts to open the merits and review the case, much less to enact that such a judgment shall not receive the same faith and credit that by law it had in the state courts from which it was taken.* ^ A question of a similar kind came before the Superior Court of New York City ^ a few years ago. The case was an action upon a judgment rendered in Wisconsin. The defendant an* swered that the judgment was recovered upon a transaction which happened in the state of New York, upon which by the laws of that state no cause of action accrued ; that the plaintiffs owed the defendant $350.70, for merchandise and liquors ; and that the plaintiffs owed him $110 upon a judgment recovered in Wisconsin. From the testimony it appeared that the plaintiffs had bought the merchandise and liquors on four months' time, and that having paid all but about $100 of the amount due for the same, the present defendant sued the present plaintiffs for the balance due, and recovered the judgment above men- tioned. It further appeared that the plaintiffs, about a month ^ Christmas v. Russell, 5 WaU. 290. > Phillips v. Godfrey, 7 Bosw. 150. SECT. UI.] FOREION JUDGMENTS IN PERSONAM. 288 prior to this suit, brought the action which terminated in the judgment now sued upon; in which action they alleged the sale by defendant to them of the liquors and merchandise upon ' a representation and warranty ' on which the plaintiffs relied, and then averred that the quality of the goods had been mis- represented, that they were poor, worthless, and of no use to the plaintiffs, whereupon the judgment in question was rendered. The defendant then moved to dismiss the complaint on the ground that the supposed cause of action was not enforceable by the laws of New York ; and that the plaintiffs were precluded from recovering by reason of the judgment obtained by the defendant for the balance of the account. The court upon the first point ruled that though jurisdiction could only be enter- ' tained of causes of action recognized by the laws of New York, still, among these was a judgment rendered in a sister state ; and that the judgmenf pronounced in Wisconsin must be received as conclusive regardless of the nature of the original cause of action, which could not now be inquired into.^ The effect of a judgment of a sister state in insolvency, under a law of that state, arose in Vermont in the case of Hall v, WinchelL^ The case was an action of debt upon a judgment of the Common Pleas of Massachusetts, rendered in the year 1858. The defendant pleaded inter alia his discharge in insol- vency in Massachusetts ; and that the debt sued upon was con- tracted prior to the institution of the proceedings in insolvency in the year 1863. The plaintiff admitted that the parties were both residents of Massachusetts at the time of the judgment ; but he alleged that the cause of action arose, and the promises for the breach of which the plaintiff recovered the judgment sued upon were made and to be performed, in Vermont. He further alleged that prior to the proceedings in insolvency he ^ In regard to the second olrjection, of the defendant for damages for mia^ it was held that the judgment obtained representing their quality. The plain- by the defendant for the balance due tifls were not bound to recoup, but might for the goods concluded the plaintiffs avail themaelTes of the right of suing on nothing except that they owed the for this wrong, price of the goods ; and that this was ' 88 Vt. 688. perfectly consistent with the liability 284 ESTOPPEL BY BECOBD. [CHAP. VL had brought suit against the defendant and attached his property in Vermont The defendant demurred ; and the demurrer was sustained.^ It is hardly needful to say that it is equally true of a judg* ment rendered in a sister state, as of one rendered in a domestic court, that to give conclusive effect in respect of a cause of ac- tion there must have been a trial on the merits of the case ; and if the judgment has gone off upon any preliminary matter, be- fore a hearing upon the main issues of the case, as, for instance, for want of appearance or prosecution, the judgment is not an estoppel in regard to the cause of action,^ because there has been no adjudication upon this point The judgment might, perhaps, be conclusive upon the particular matter upon which the case went off,^ but not of anything else. Whei*e suit was brought upon a note, and the defendant pleaSied in bar a judg- ment rendered in a foreign court the record of which showed that sidt had there been brought between the same parties, upon the same and other notes, and judgment had been given in favor of the plaintiff on the other notes, but in regard to the one now 1 The court by Wilson, J. said : ' It tion of the discharge ; but we think the appears to be well settled in this state language of the statute does not justify that a judgment rendered in one state, such conclusion. The statute makes by a court having jurisdiction of the no such exception. It is a law of dis- suit, will operate as a merger of the charge ; it does not merely take away cause of action, and be a bar to the fur- the remedy in that state, but it fully ther prosecution of a suit in another and absolutely dischax^ges the debt state between the same parties and everywhere. Courts here should give upon the same claim. But whether the same operation and effect that was such is the effect of the plaintiff's judg- intended by the legislature of that ment upon his original claim it is not state.' necessary to decide ; for whether it was ^ Sarchet v. Sloop Davis, Crabbe, the judgment, or the claim on which the 185, and cases cited; McElmoyle v. judgment was founded, that was due to Cohen, 18 Peters, 812 ; Matoon v. the plaintiff at the time of the institu- Clapp, 8 Ohio, 248. So of a counter- tion of the proceedings in insolvency, claim presented against a suit in a sis- is of no importance. Either of them ter state, but dismissed for want of was a debt due to the plaintiff, within prosecution. Rankin v, Barnes, 5 Bush, the meaning of the statute. The plain- 20. tiff's counsel insists that the attachment ' But see Denny v. Bennett, 128 in this state, prior to the commencement U. S. 489, Miller, J. quoting with ap- of the proceedings in insolvency which proval the language of Bennett v. Denny, resulted in the defendant's discharge, 83 Minn. 530, in regard to nilings upon should except his debt from the opera- motions and summary proceedings. SECT, ni.] FOREIGN JUDGMENTS IN PERSONAM. 285 in question the defendant had gone without day or had been dis- charged, the court allowed evidence to be received to show that the plaintiff had withdrawn the note, and that it had not been passed upon, and that therefore there was no estoppel.^ The rule in such cases is thus stated by Mr. Justice Nelson :^ The judgment of a court of concurrent jurisdiction, or one in the same court directly on the point, is as a plea a bar, and as evidence conclusive between the same parties upon the same matter directly in question in another court or suit ; but is no evidence of a matter which comes collaterally in question merely, nor of matter incidentally cognizable or to be inferred by argument or construction from the judgment.* Secondly, if it does not appear from the record that the verdict and judg- ment in the former suit were directly upon the point or matter sought to be put again in litigation in the second action, the fact may be shown aliunde, provided the pleadings in the first suit were such as to justify the evidence of those matters, and that it also appeared that when proved the verdict or judg- ment must necessarily have involved their consideration and determination by the jury.* The cases we have been considering also show that the judg- ment must have been final and conclusive in the state in which it was rendered in order to give it conclusive effect ; otherwise the judgments of sister states would be accorded greater effect than where they were pronounced.^ And this is of course the doctrine in England in regard to foreign judgments.^ The rule of conclusiveness also holds in collateral actions in the Court of Chancery ; and this court will not, subject to the limits pertaining to domestic judgments,^ permit one who has 1 Bnrnham v. Webster, 1 Woodb. & at length in the chapter on Domestic M. 172 ; Baker v. Rand, 13 Barb. 152, Judgments in Personam. 160, 161, and cases cited. ^ Comp. Nouvion v. Freeman, 87 Ch. a Lawrence v. Hunt, 10 Wend. 80, D. 244, C.A. S3. * Nouvion v. Freeman, supra ; Frayes * Duchess of Kingston's Case, ante, v. Worms, 10 C. B. N. s. 149 ; Plum- p. 92 ; Jackson v. Wood, 8 Wend. 9 ; mer v. Woodbume, 4 Bam. & C. 626 ; 8. 0. 8 Wend. 27. Douglas «. Forrest, 4 Bing. 686. * See Bailey v. O'Connor, 19 N. H. ' Ante, pp. 201, 202. SOS. This subject has been considered 286 ESTOPPEL BY RECORD. [CHAP. VI. bad his claims investigated in another state to raise the same questions for reinvestigation on the same facts.^ Therefore an answer to a bill filed in Vermont that a decree was pro- nounced in Massachusetts, dismissing a bill in chancery for the same cause, between the same parties, the court having juris- diction, is a good estoppel.^ Judgment by confession in the clerk's office during vacation is also conclusive ; ' and the same is true of judgment confessed by an attorney by virtue of a warrant empowering * any attorney of any court of record in the United States to confess judgment' ^ Nor is it necessary to the conclusiveness of the record that it state in detail all the pro- ceedings in the case. It will be sufficient if it shows the sub- ject-matter of the suit» jurisdiction over the parties, and the final judgment.* The question was raised in Maryland in the year 1824 whether the federal courts were foreign to the state courts so as to make their judgments liable to impeachment upon the merits, as at that time was supposed to be the law of foreign judgments.^ The case referred to was an action of ejectment, in which the appellee claimed title to certain real estate in Baltimore levied upon in attachment in the federal court of Maryland by the United States, and sold by the marshal to him. The suit in the federal court was upon a bill of exchange. Upon the present trial it was contended that there was no proof of the handwriting of the drawer of the bill referred to, in the suit in the United States court, or of that of the indorsers of the same ; that there was no evidence that the bill had been pre- sented for payment, and none that the debt was due. The judg- ment was a foreign one, and it made no difference whether it came before the court incidentally or directly ; in either case it was subject to impeachment. 1 Brown v. Lexington ft D. R. Co., * Randolph v. Eeiler, 21 Mo. 557. 2 Beasl. 191 ; Low v, Mussey, 41 Vt ^ Knapp «. Abell, 10 Allen, 485, per 898 ; Manson v, Manson, 80 Conn. 425. Gray, J. See Grignon v. Astor, 2 How. See Pennington v. Gibson, 16 How. 840 ; Hockaday v. Skeggs, 18 La. An. 65 ; Nations «. Johnson^ 24 How. 195, 681. 208. • Barney v. Patterson, 6 Har. ft J. ', Low «. Mnssey, supra. 182. * Harness v. Green, 19 Mo. 823. SECT. III.] FOREIGN JUDGMENTS IN PERSONAM. 287 The court said that though the rule was that foreign judg- ments were not conclusive of the merits where the paities claiming the benefit of them apply to our courts to enforce them, stiUy when such judgments came incidentally under con- sideration, they had the same force and effect as domestic judg- ments.^ But the federal courts were not foreign to the state courts. The Constitution and laws of the United States were * the supreme law of Maryland ; the laws of Maryland furnish rules of decision for the United States court, and causes com- menced in the state courts might be removed for trial to the Circuit Court. The citizens of Maryland were returned as jurors in that court, and were amenable to its process ; and their property was liable to seizure and sale by the marshal of the district under executions from that court : these and other attri- butes of a domestic court placed it upon a ground very different from that of a foreign court The point is well settled.' As the result of the cases, the construction placed upon the Constitution and acts of Congress relating to the judgments of courts of record of the sister American states, of the District of Columbia,* and of the federal courts, may be thus stated : — 1. Such judgments are to be regarded as record evidence throughout the Union. 2. Such judgments, if final and conclusive where rendered, are to be regarded as conclusive throughout the Union upon all issues that were tried in the sister state even though the proceedings were irregular and erroneous, and it may be added though an appeal or proceeding to vacate the same be pending unless the effect of the appeal be to abrogate or suspend the judgment.^ But it must be observed that the rule is otherwise in case it be made to appear (by the record or otherwise) that 1 Taylor v, Phelpe, 1 Har. & O. 492 ; 107 U. S. 8, 10 ; Thompson v. Lee Co., ante, p. 258. But where the judgment 22 Iowa, 206 ; Womack v. Deaiman, 7 throQgh which title is claimed is void, Port. (Ala.) 518. as for want of jurisdiction, the fact may * Embrey v. Palmer, 107 U. S. 3, 10. be shown and the chain of title thus de- * Merchants' Ins. Co. r. De Wolf, stroyed. Rider v, Alexander, D. Chip. 88 Penn. St 45. And the same ia 267 ; McCallv. Carpenter, 18 How. 297. true of the judgments of foreign conn- > Chicago R. Co. r. Wiggins Ferry tries. Scott v. Pilkington, 2 Best ft Co., 108 U. S. IS ; Smbrey «. Palmer, 8. 11. 288 BBTOPPEL BT BECOBD. [CHAP. VI. the jadgment was void either by the general principles of jus- tice as understood in civilized countries, or by the law of the state in which it was rendered.^ § 4 Jurisdiction. Let us now turn again to the judgments of foreign countries and of colonies, and consider the course of authority concerning inquiry into the jurisdiction of the court which pronounced the judgment in question. In a case of high authority decided near the beginning of the present century in the King's Bench * the plaintiff declared in assumpsit upon a foreign judgment ren- dered in the island of Tobago, and at the trial before Lord Ellenborough produced a copy of the proceedings and judgment^ certified under the handwriting of the Chief Justice of the court pronouncing the judgment ; which, after containing an entry of the original declaration, set out a summons to the defendant, therein described as formerly of Dunkirk and now of London, which summons was returned, ' served, etc., by nailing up a copy of the declaration at the coui-t^house door.' Judgment was afterwards given by default It was alleged, and there was parol proof, that this mode of summoning absentees was war- ranted by the laws of the island, and commonly practised thera But the judgment was held not binding.* 1 Embrey v. Palmer, 107 U. S. 8 ; a person sued in the island had never McElmoyle v. Cohen, 13 Peters, 312, been present within the jurisdiction, 826. yet that it should bind him upon proof ' Buchanan v, Rucker, 9 East, 192 ; of nailing up the summons at the court 8. c. 1 Camp. 72. door, how could that be obligatory ' In delivering the opinion of the upon the subjects of other countries? court Lord Ellenborough said : 'There Can the island of Tobago pass a law is no foundation for this motion even to bind the rights of the whole world ? upon the terms of the law disclosed in Would the world submit to such an the affidavit. By persons abaerU from assumed jurisdiction ? The law itself, the island must necessarily be under- however fairly construed, does not war- stood persons who have been present rant such an inference ; for " absent and within the jurisdiction so as to from the island " must be taken only to have been subject to the process of the apply to persons who had been present court ; but it can never be applied to there and were subject to the jurisdic- a person who for aught appears never tion of the court out of which the pro- was present within or subject to the cess issued ; and as nothing of that sort jurisdiction. Supposing, however, that was in proof here to show that the defend- the act had said in terms that though ant was sulject to the jurisdiction at SECT. lY.] FOREIGN JUDGMENTS IN PERSONAM. 289 A similar case was decided at a later day in the House of Lords.^ The defendant in the case referred to was a subject of Scotland, while the judgment against him was pronounced in France, and the action was there begun and ended without his presence ; the only summons being by affixing notice in a public place, in accordance, indeed, with the law of France. In his opinion Lord Brougham said that the same principle must be applied as that declared in the preceding c^se. The language of the court in Douglas v, Forrest* was referred to in this connec- tion ; which* was the case of a testator whose domicil had been in Scotland where and when the suit in question was brought; but it appeared that he was absent from the country at the time of the action and had no personal notice of the proceedings, which terminated in a judgment against him. It was proved that by the law of Scotland the court might pronounce judgment against a Scotchman for a debt there contiucted, though he had no notice of the proceedings and was absent from the countiy at the time. After holding that such a judgment was not contrary to natural justice, and that therefore it could be enforced in England, the court proceeded to say : ' We confine our judgment to a case where the party owed allegiance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judgments were given, protected.'^ By the laws of Scotland, as stated by the court in this case, such a judgment would not be conclusive upon the merits if the defendant should choose to impeach it within forty years, but after that time, if not overturned, it would work an estoppel between the parties ; and of course its conclusiveness abroad would depend upon the state of facts, in accordance with a rule already stated. These cases are sufficient to show that the parties to a foreign judgment are not estopped ordinarily to deny the jurisdiction of the foreign court We say 'ordinarily,' for it is possible that the time of commencing the suit, there * See Schibsby v. Westenholz, L. R. is no foundation for raising an assumpsit 6 Q. B. 155, reaffirming the doctrine of in law upon the judgment so obtained.' the above-cited cases. See also Copin v, 1 Don V. Lippman, 5 Clark & F. 1. Adamson, L. R. 9 Ex. 845. s 4 Bing. 686. Id 290 BSTOPPEL BT BBOOBD. [CHAP. YI. if upon appearance between cUizens ^ an issue had been joined between the parties upon this pointy and this issue had been decided in favor of the jurisdiction, the decision in this par- ticular would bar a retrial of the question. And this too though it should foe conceded that the defendant's appearance, being merely entered to test the question of jurisdiction, had not per se given the court complete jurisdiction to try the merits of the case.^ There are also many English cases which show that foreign judgments are not considered as record evidence in England, but only as evidence of simple contract debt.® It would seem to follow from this that the jurisdiction of the foreign or colonial court could be called in question, even though facts were stated in the transcript which would show jurisdiction, such as appear- ance or a return of personal service upon the defendant by the officer, on the summons or citation. The American doctrine concerning inquiry into the jurisdic- tion of courts of the sister states has until recently been in con- siderable confusion, as we shall se& It has already been noticed that it was at one time supposed by some of the courts that the rule in the case of Mills v, Duryee ^ had gone to the extent of declaring that the judgments of each state were so conclusive in every other that even the jurisdiction of the court of a sister ^ Perhaps residents not being citizens pearance is a waiver of defective notice, would be bound in the same way ; being Frew v, Taylor, 106 111. 159, 162 ; Peo- ander the protection of the local law, pie t^. Sherman, 83 III. 165 ; Hale v» they would be bound by it. See Rou- People, 87 111. 72 ; Harbaugh v, Albert- Billon V, Rousillon, 14 Ch. D. 851; son, 102 In d. 69, 75. See King t?. Penn, Schibsby v. Westenholz, L. R. 6 Q. 6. 43 Ohio St 57. In regard to ac^a- 155 ; post, p. 297. dication respecting the jurisdiction, see ^ Such appearance would not, ipso Segee v. Thomas, 8 Blatchf. 11 ; Bon- fftcto, give the court jurisdiction over sail v, Isett, 14 Iowa, 809 ; Shawhan v. the defendant for all purposes. Wall- Loffer, 24 Iowa, 217 ; Hangeifoni v. ing V. Beers, 120 Mass. 548. See Gushing, 8 Wis. 824. Wright t;. Andrews, 180 Mass. 149; » Hawksford «. Giffard, 12 App. Caa. Bissell V. Briggs, 9 Mass. 462, 468, 122, Lord HerscheU ; Hall v. Odber, 11 469; Wright v. Boynton, 87 N. H. 9; East, 124 ; Plummer v. Woodbome, 4 Lincoln v. Tower, 2 McLean, 482 ; Gun- Bam. & C. 625 ; Smith v, Nicolls, 7 ningham v. Goelet, 4 Denio, 71 ; Gen- Scott, 147 ; a. c. 5 Bing. K. G. ^08; eral Nav. Go. v. Guillon, 11 Mees. & Bank of Australasia f>. Harding, 9G. B. W. 877, 894 ; Schibsby v. Westenholz, 661. L. R. 6 Q. B. 155, 162 ; Chichester v. « 8 Cranch, 381. Chichester, 10 P. D. 186. General ap- SECT. IV.] FOREIGN JUDGMENTS IN PERSONAM. 291 State was not open to inquiry.^ But however general die Ian* goage of the court iii that case may appear, it is certain that it is not an authority for such a doctrine. The fact has often been pointed out that the record of the judgment there sued on showed explicitly that the court of the sister state had acquired jurisdiction of the person of the defendant, and no question was raised upon this point. The court having had jurisdiction, the judgment pronounced was of course absolutely unimpeach- abla The decision must be considered with reference to the &ct8 in the case. We purpose now to consider first those cases in which the record of the judgment rendered in the sister state is either silent upon matters relating to jurisdiction, or does not contain a direct statement of facts which constitute jurisdiction. In an early case in Massachusetts' an action was brought upon a judgment rendered in Georgia, the record of which showed a return of personal service by the officer upon one of the defend^ ants, and ' not to be found in the county ' oonceming the other. The record stated an appearance of the party served, by his attorney ; but in a subsequent part of the record it was recited that the defendants (naming them) appeared by tfieir attorney ; whereupon judgment was rendered against them jointly. The defendant not served pleaded that he was never a resident of Georgia, had not been served with process in the case, and had not appeared therein. The plaintiff replied the record as an estoppel ; but the court overruled the replication on demurrer.* ^ Commonwealth v. Green, 17 Mass. diet the record by a plea and by an 544 ; Gleaion v. Dodd, 4 Met 888. issue to tiie countty thereon. But if * Uall 9. Williams, 6 Pick. 232. the record does not show any service ' Parker, C. J. said : ' If it appeared of process, or any appearance in the hy the record that the defendants had suit, we think he may be allowed to notice of the suit, or that they appeared avoid the effect of the judgment here in defence, we are inclined to think that by showing that he was not within the it could not be gainsaid ; for as we are jurisdiction of the court which ren- boand to give full faith and credit to df>red it ; for it is manifestly against the recofd, the facts stated in it must first principles that a man should be be taken to be true judicially; and if condemned . . . without an opportu- tbey shoold be untrue by reason of mis- nity to be heard in his defence.' In re- take or otherwise, the aggrieved party gard to the recital of the appearance of must resort to the authorities where the defends ntJi by their attorney it was the judgment was rendered for redress ; said : 'As this is a mere recital founded for he could not be allowed to contra- upon the prior proceedings, this cannot 292 ESTOPPEL BT BEGOBD. [CHAP. YI. In a case in Alabama similar to Hall v, Williams, just re- ferred to, in which two defendants were sued on a judgment against them rendered in a sister state, it appeared that only one of them was personally served and had pleaded, but the record recited that the parties came by their attorneys. The court held that it would be intended that he only came who had made up the issue for triaL^ It is worthy of note in both the cases cited that the recital in the record was that the parties came by attorney, without naming the defendants. It is con- sistent with this recital that the plaintiff and one defendant came by attorney ; and it was not, in strictness, disputing the record to show that one defendant did not appear. Indeed, in the case of a non-resident defendant at least it would be proper to show that the appearance by attorney was authorized for a limited purpose only and not for the whole purpose of the trial, so that the estoppel would not extend beyond the facts within such special purpose, even though the party may have appeared in person as a witness in the cause.^ In an action in Connecticut ^ upon a judgment rendered in Rhode Island the record showed an appearance of the defendant by attorney; whereupon he offered to show that he had not authorized any one to appear for him, to which evidence the plaintiff objected on the ground that the record was conclusive of the matter. The court, however, ruled that the evidence was proper, because its admission involved no contradiction of the record ; quoting the language of Lord Mansfield in a case in which he permitted the defendant to show a similar fact. His lordship said : ' The record of the Common Pleas amounts to no more than this, that the attorney prosecuted the suit in the plaintiff's name.* * This precise question has never arisen in the Supreme Court be taken to be an assertion of record lioation hy estoppel is therefore bed that Fiske appeared by attorney, for it and the plea good, which settles the appears by the same record that the case in favor of the defendants.* attorney appeared for Williams only, ^ Puckett v. Pope, 3 Ala. 552 ; Cat- and there is no plea filed but for WU- lin t?. Gilders, ib. 536. liams. There is nothing, therefore, in ' Wright v. Andrews, 130 Mass. 149. the record which is contradicted by the ' Aldrick v. Kinney, 4 Conn. 880. second and third pleas, and the rep- * Bobson v. Eaton, 1 T. B. 62. SECT. IV.] FORETQN JUDGMENTS IN PERSONAM. 298 of the United States, which has revisoiy jurisdiction over the state courts in matters involving the construction of the federal Constitution and acts of Congress ; but the opinion of the court may perhaps be inferred from what was said in a well-known case.^ And though the case referred to related to the question of jurisdiction in the federal courts in suits between citizens of different states, the point now referred to would seem to have depended upon the same principles as if it had been a case under the act of Congress. In this case the defendant, L. P. Perry, had not been personally served with notice, nor had he personally appeared in the suit in question; but the record showed an appearance by counsel, and a defence to the action. Concerning the right of Perry to prove that the attorney had no authority to appear for him, Mr. Justice McLean said that the evidence did not contradict the record but explained it; the appearance was the act of the counsel, and not the act of the court The defendant was not bound by the proceedings. The cases above mentioned have been almost uniformly fol- lowed in America ; and there is no rule more fully settled than that where the record merely recites an appearance by attorney, there is no estoppel to show that such attorney had no authority to appear,* or had but a limited authority.' The doctrine can- not be considered as at variance with the act of Congress ; for the jurisdiction in such cases, it seems, would not be conclusively presumed in the domestic courts.^ But as we shall presently see, it has been considered by the courts that the provisions of the Constitution and act of Congress do not extend to matters of jurisdiction. And it seems to be more than doubtful now, in the silence of the record in regard to the facts constituting jurisdiction, whether in a case of non-residents there would be even a prima facie presumption of the court's jurisdiction, though 1 Shdton V, Tiffin, 6 How. 163. ler, 1 Clarke (la.), 588 ; Lawrence v, 3 Watson V. New England Bftnk, 4 JarviA, 32 III. 304 ; Harshcy v. Black- Met. 348; Bodurtha v. Goodrich, 3 marr, 20 Iowa, 161. The last-named Gray, 508 ; Denison v, Hyde, 6 Conn, case contains a very exhaustive discus- SOS ; Welch v. Sykes, 8 Gilm. 197 ; sion of the doctrine by Dillon, J. But Shumway v, Stillman, 6 Wend. 447 ; see Warren r. Lnsk, 16 Mo. 102. Kerr v, Kerr, 41 N. Y. 272 ; Westoott » Wright v. Andrews, 130 Mass. 149. V. Brown, 13 Ind. 88 ; Baltzell v. Nos- * Ante, pp. 208, 209. 294 ESTOPPEL BT RB€X>BD. [CHAP. YI. the court were one of record proceediDg according to the course of the common law.^ Probably the courts would not require the plaintiff in the judgment to prove the jurisdiction (in the silence of the record) where there was nothing to show that the defend* ant was a non-resident Bat in Downer v. Shaw, above cited, it was held that where the record showed that the defendant was a non-resident, and then recited that it appeared to the court that he had notice of the pendency of the suit, the recital was not even prima facie evidence that the defendant was served with notice in the state in which the original suit was brought The court said that the record stated a conclusion only, and not the fact upon which it was based. In view of the non-residence of the defendant it could be held to mean no more than that such notice had been given, actual or constructive, as according to the law of the state would warrant a judgment in rem. There are some apparent exceptions to this rule, as in the case of scire facias against bail In suits upon judgments ren- dered upon scire facias without an allegation of personal notice of this proceeding, it has been held that- the defendant cannot allege the want of notice as a defence. This, however, is no exception in fact^ for in the case of special bail the ground taken was that he would be presumed to be acquainted with the origi- nal suit, as he had come into court and there undertaken his peculiar liability.^ But there have been contrary decisions on this point' In the case of Adams v. Bowe, cited in the note, it appeared that the plaintiff in a suit upon a judgment of another stc^te had obtained the same against one Benson, and against the present defendant as his trustee. Personal service had been returned in regard to both. Execution was issued and returned unsatis- iied. About a year afterwards a scire facias was sued out against the present defendant, who had in the mean time removed from the state ; and the officer returned that he had summoned the defendant by leaving an attested copy of the writ at the last 1 Downer v. Shaw, 22 K. H. 277 ; ib. il7 ; Adams «. Rowe, 2 Fairf. S8 ; Barringer v. King, 5 Gray, 9, 11 ; Com- Poorman «. Crane^ Wright, S47. moQ wealth v. Blood, 97 Mass. 588. * Robinson «. Ward, S Johns. 86 ; 3 Delano v. Joplinft 1 latt 117 ; Holt o. Alloway, 2 Blackt 108. H£CT. lY.] FOREIGN JQDQMSNTS IN P£BSONAM. 295 and usaal place of abode of the defendant. Judgment was finally rendered against him by default; and this was the judg- ment sued upon. The court held that the scire facias was not the commencement of a new 8uit» but only a continuance of the original action ; that the court of the sister state, having acquired jurisdiction over the defendant at first, retained the same through- out, notwithstanding the fact that there was no personal ser- vice of the scire facias, or appearance ; and the judgment was conclusive. Where, however, pending suit a party dies and an adminis- trator is appointed, this fact alone does not constitute the latter a party to the suit so as to dispense with personal notice. He must appear and make himself a party to the record ; otherwise the court, though having had personal jurisdiction over his in- testate, will not acquire it over him. And he may show the facts in a suit in another state upon the judgment, though the record contain a recital that he came in.^ ^ Gleason v, Dodd, 4 Ifet. 838. In fact, the court clearly had jurisdiction the case just cited, a suit upon a judgw of the same aod of the person of the ment for coats rendered against a plain* administrator as such plaintiff, with tilT in another state, the record recited power to render judgment against him that the plaintiflTs administrator, de- on failure to prosecute according to fendaat in the suit for costs, ' came his undertaking. Nor could he defend in,' upon a suggestion of the death of himself by showing that he has nerer his intestate. In the present suit upon been appointed administrator in Maine, the judgment he denied any appearance ... Is the record conclusive of that either personally or by attorney ; and fkct [of appeaiunce] t The answer to the question was whether he were con- this question we think depends on this, duded by the allegation in the record, whether such appearance or coming in Mr. Chief Justice Shaw said : ' By the by himself personally, or by his author- laws of Maine, as well as those of ized attorney, is necessary to give the Massachusetts, when a plaintiff dies court jurisdiction ; and we think that his administrator, being appointed un- it is. The administrator is a distinct der the laws of the same state, with- party from the original plaintiff. He out commencing a new suit may come is not de facto a party on the fact of in and prosecute the existing suit in the death of the testator or intestate the same manner as if he had com- being suggested, and cannot be made menoed a new one. We understand suoh unless by his own voluntary act, the record to state that in pursuance of or when he is compellable to appear these provisions of law Dodd, claiming on summons, and has in fact been sum- to be administrator with a right and moned. By the death of the oiiginal power as administrator to prosecute plaintiff the suit is suspended and must that suit, appeared and made himself remain so unless an administrator, qual- a party to it in order to prosecute the ified to act in the state where the suit is same to judgment If this wei« so in pending, shall thna come in. Until this 296 ESTOPPEL BY RECORD. [CHAP. VI. Parties and privies, then, will not be precluded from inquiring into the jurisdiction, — 1. When the record is silent upon the subject ; 2. When it recites simply an appearance of the defendant bj attorney ; 3. When it is ambiguous or obscure. Since the first edition of this work it has further been ad- judged by the Supreme Court of the United States that the same rule prevails even though the record of the judgment sets out facts sufficient if true to show that the court which pro- nounced it had jurisdiction. The recital, however specific, af- fords at most but prima facie evidence of jurisdiction ; and the defendant is now permitted to overturn it.^ This is, of course, final authority. It is a universal rule of law that a judgment of one state or country can have no effect upon the citizens of another, beyond property of theirs seized and disposed of, unless they were per- sonally notified by service of process within the state of the is done the- ooart has no jurisdiction ness of judgments as to matters tending of the person of such administrator, to show that the court had jurisdiction We think, then, it is clear that as to this does not extend to such recitals, but fact, thus necessary to give the court only to specific averments of fact, such jurisdiction, the judgment is not con- as an arrest, personal service, or pei^ elusive.' In commenting upon the sonal appearance.' concluding remark of the court in a ^ Thompson v. Whitman, 18 Wall, case already referred to (Hall v. Wil- 457; Knowles i^. Gaslight Co., 19 WalL liams, 6 Pick. 232), that ean, 478 ; Wilson arrested and gave bail, or was person- v, Jackson, 10 Mo. 330 ; Bradstreet v. ally summoned ; indicating his actual Neptune Ins. Co., 3 Sum. 600 ; West* presence in the state at the time of the cott v. Brown, 18 Ind. 83 ; Lawrence o. commencement of the action, and of Jarvis, 32 IlL 304 ; Lapham v. Briggs, course subject to its jurisdiction, or '27 Vt. 26 ; Hall v. Williams, 6 Pick, other facts of the like nature. ... It 232 ; and dicta in Shelton v. Tiffin, 6 therefore follows that the conclusive- How. 163. SECT. lY.] FOREIGN JUDGMENTS IN PERSONAM. 297 forum, or afterwards appeared generally in defence of the action; and this, too, regardless of any statute making publication or other notice not personal a substitute for the service of process.^ And under the decisions of the Supreme Court of the United States above referred to the fact of non-residence, together with non-citizenship ' and want of personal notice by service within the state in which the judgment was rendered, may now be shown, whatever may be the averments of the record. So too where part of the defendants are residents and part non-residents not notified, the latter (at least if not citizens) are not bound.' Indeed, it is laid down that judgment rendered against several non-residents jointly is in other states invalid against all if jurisdiction over any one of them by service or appearance was not obtained^ though it was so obtained over others; unless there be evidence to show that by the law of the state of the forum a joint judgment may operate severally against the de- fendants.^ The statutes of a state, however, are binding upon its own citizens ; and whatever provision is made for bringing suits against tJiem will be held obligatory in other states.'^ And it is well held that judgments bind residents in the same manner as citizens.® But a law which should make citizens or residents 1 Gftlpin V. Page, 18 Wall. 850; the non-rasident may be represented e.g. Darant v. Abendroth, 97 N. Y. 132; by a tenant. Board of Commissioners ante, p. 204. Nor can a judgment ». Welch, 40 Kans. 769. against a non-resident not served and not ^ Wright v. Andrews, 130 Mass. 149. appearing be sned upon in the state in * Galpin v. Page, 18 Wall. 350 ; which it was rendered, or be made avail- Hood v. Hood, 11 Allen, 196 ; Don able against other property than that v. Lippman, 6 Clark & F. 1 ; Schibs- sttoched. Ibid. ; Boswell v. Otis, 9 by v, Westenholz, L. R. 6 Q. B. 155 ; How. 348 ; Cooper o, Reynolds, 10 Douglas v. Forrest, 4 Bing. 686 ; ante, Wall. 308 ; Durant v. Abendroth, 97 p. 289. See Bnrlen r. Shannon, 99 N. Y. 182. 141 ; Schwinger o. Hickok, Mass. 200, 207. The domicil of a 58 N. Y. 280. wife is that of her husband ; hence the * A citizen of a state may be a non- laws of the state in which he is domi- resident there ; but as a citizen he would ciled will bind her as well as him in re- probably be bound by the laws of his gard to the mode of acquiring jurisdic- state in regard to modes of acquiring tion, though she in fact reside elsewhere, jurisdiction. Hciod v. Hood, 11 Allen, 196. See also » Board of Public Works . Colnm- Dolphin v. Robins, 7 H. L. Cas. 890 ; bia College, 17 Wall. 521. It has some- Story, Confl. Laws, § 46. times been supposed to be necessary to * Rousillon v, Rousillon, 14 Ch. D. show something more than non-residence 851; Schibsby v, WestenhobE, L. R. 6 and non-appearance, on the ground that Q. B. 155« 298 ESTOPPEL BY RECOBD. [CHAP. TI. of the state bound, without service of process or general appear* ance, by a judgment, beyond property attached and disposed of, would be extraordinaiy, unless the judgment was of the class which are conclusive inter omnes.^ We gi^ some illustrations of these rulea In an action in Missouri upon a replevin bond mtuie in Indi« ana it appeared that a statute was in force in the latter state which declared that when given for the stay of execution, such bond from the date of its execution ' shall be taken as and have the same force and effect of a judgment confessed in a court of record against the person or persons executing the same, and against their estates, and execution may issue thereon.' But the court in Missouri held that the act could have no extra- territorial effect ; that it could not be sued upon as a judgment rendered in a sister state ; and that it was not within the Con- stitution and act of Congress so as to be entitled to the same faith and effect which it would receive in Indiana.' An action of debt under the following circumstances was brought in South Carolina' upon a judgment rendered in New York. The judgment sued upon was founded upon a joint note, and rendei'ed against the makers jointly. Only one of the de* fendants was served or appeared. The other defendant pleaded that he was not notified ; but a statute of New York was shown by which it was provided that in actions against two or more persons upon any joint obligation, contract, or liability, if the process issued against all the defendants should be duly served upon any of them the defendant so served should answer the plaintiff; and in such case the judgment, if rendered in favor of the plaintiff, should be against all the defendants, in the same manner as if all had been served with process. In another sec- tion of the same statute it was provided that such judgment should be conclusive evidence of the liability of the defendant personally served or appearing ; but against every other defend- ant it should be evidence only of the extent of the plaintiff's demand, after the liability of such defendant should have been ^ That indudesjad^entt of divorce. < Pootev. Kewell, S9 Mo. 400. Ante, p. 227. ' McnloTO v. Cakes, 2 McMuU. ISS. 3BCT» IT.] FOBEION JUDGICSMTS IN PBBSONAM. 299 estabUsbed by other evidence. It was held that the judgment could have no extra-territorial effect^ A case precisely similar occurred in 1846 in the Supreme Court of Connecticgt ^ involving the same statute. It was urged as a reason for sustaining the action upon the judgment ren- dered in New York that by the laws of that state a similar suit might there be brought upon the judgment against all the de* fendants served and not served, and that the plaintiff would not there be permitted to recur to the original cause of action.^ But tlie court replied that it was obvious (and the cases cited from Wendell's Reports showed this) that that action was prescribed there, not because there was in fact any judgment furnishing evi* deuce of liability, but on grounds of local policy, as a convenient mode of proceeding for the I'ecovery of the original debt from all the joint debtors. The regulation pei*tained to the remedy, and not to the merits^ which could not be thus affected. 1 The court by O'NeaUy J. said ; liovever, the whole matter is yet to be ' Reading the statute without the aid sifted before the court can decide that of note or comment I do not perceive the defendant is at aU liable.* In other how there ever oould have becai a dis- words, such judgment on such proof ea- pute that as against the defendant [not tablishes only the amaufU of the plain* served] the judgment was anything tiff's demand, not its justice ; this may more than one in form, and that in sub* be disputed in an action upon the judg< •tance it concluded nothing against the ment. After referring to the decisions person not served. For the provision of the courts of New York (Carman v, against every other defendant that it Townsend, 6 Cow. 695 ; s. c. 6 Weud. shaU be evidence only of the extent of 206 ; Haliiday v. McDougall* 22 Wend, the plaintiff's demand, after the liabil- 270) in support of the above-stated ity of such defendant shaU have been view, Mr. Justice O'Neall proceeds : established by other evidence, plainly * But be this as it may, it is very clear shows that it was intended only as a that the judgment thus obtained in final judgment against the defendant New York can have no extra-territorial served, and that everything was left effect. For as against the party not open against the other. If this was served it cannot be regarded as a judg- not so, why was it provided that it ment further than as a mere means by should not even be evidence of the which the partnership effects in New extent of the plaintiff's demand until York are made liable to the joint debt, after his liability was established by In this reapeet it is analogous to judg. evidence ¥ This was putting the plain- ments in attachment, or decrees pro tiff to prove his case from the begin- confesso against absent defendants in ning. When this is so, there can be equity.' See Buckner v. Archer, 1 Mo- nothing like a judgment in its appro- Mull. 85 ; Lesteijette v. Ford, ib. 86, priate legal sense. For aecording to note, cited by oourt that it is the final evidence of the court ' Wood v. Watkinson, 17 Conn. 500. on the rights of the parties. Here, ' Mervin v, Kambel» 28 Wend. 298. 800 ESTOPPEL BY BEOOBD. [CHAP. VI. Cases of foreign attachment are closely allied to these ; indeed, the principle pervading them is the same. A case already re- ferred to ^ affords a good illastration. The plaintiff in New Hampshire sued upon a judgment renderedi in Vermont The original writ described the defendant as a resident of the former state ; and the return upon it showed an attachment of his prop- • erty in Vermont, and that he was then living out of that state. The court held that the action must fail in the absence of any- thing in the record showing personal notice to the defendant in Vermont, or appearance in the suit It was said that the state of Vermont might assert jurisdiction over property situated within its territorial limits though the owner was not a resident of the state ; and that so far the proceedings in that state were con- clusive, but no further.* We have already noticed the fact that the statement is some- times made in the books that actions upon foreign attachment are proceedings in rem so far as the property attached is con- cerned ; and we have shown that the statement is misleading.' The case of Woodruff v. Taylor ^ shows that legislation cannot change the nature of such proceedings. It was an action of trespass for taking certain personal property. The defendant pleaded that he had recovered judgment in the Court of King's Bench in Canada against one Smith, and that he had thereupon taken out a writ of fieri facias, which he caused to be levied upon the property in controversy in this suit as the property of Smith, and that the property was duly sold, and its avails paid into court by the sherifi's bailiff; that one Johnson then ap- peared and also claimed to be a creditor of Smith, and demanded an apportionment of the avails of the property, and that the court thereupon ordered an apportionment ; that there was a law of Canada that when the proceeds of property sold on ex- ecution were thus paid into court, any person having any claim to the property might enter an appearance in court, and that if he neglected to do so and judgment of distribution was rendered, as had been done in this case, such judgment was conclusive 1 Downer v, Shaw, 22 N. H. 277. • Ante, pp. 49, 60. « Hall V. Williams, 6 Pick. 282, * 20 Vt 86. 241, cited by the court SECT. IT.] FOREIGN JUDGMENTS IN PERSONAM. 801 both upon the title of the property and the amount of damages and costs, and was a bar against all persons to any and all ac- tions founded upon any title, claim, or possession in or to the property. The plaintiff replied that the property in question belonged to himself and not to Smith, and that during all the time of the pendency of the proceedings in Canada he was a citizen and resident of the United States, and that he had no notice of such proceedings. The court upon demurrer held that the proceedings in Canada could not be considered as in rem, and that the replication was a good answer to the plea. It is conceivable that an act of the legislature might declare such proceedings conclusive against all the citizens of the state ; but statute could no further go. Unless the proceedings partake of the real character of proceedings in rem, as by being adjudi- cations of prize or upon the status of a person, they can have no eflfect beyond the jurisdiction of the state except upon such non- residents as have been served with notice within the jurisdiction, or as have appeared in the case. The books contain a multitude of cases of this class ; but they are not distinguishable in prin- ciple from the foregoing. All agree that such judgments, while conclusive between the parties in respect of the property at- tached, are void as judgments in personam unless founded upon personal service or appearance.^ The principle upon which these cases proceed is one of uni- versal application both in regard to judgments of the sister states of the Union and to those of foreign countries. It may be thus stated : The legislature cannot give extra-territorial ef- fect to any matters or proceedings as judgments which are not based on personal notice to or appearance by the (non-resident) defendant, and trial before a court of competent jurisdiction. These are facts necessary to the validity of every judgment in 1 Galpin ». Page, 18 Wall. 850 ; Wright V. Andrews, 130 Mass. 149 ; Lincoln v. Tower, 2 McLean, 473 ; Westerwelt «. Lewis, ib. 511 ; Steel V. Smith, 7 Watts & S. 447 ; Miller v. Miller, 1 Bail. 242; Chamberlain v. Faris, 1 Mo. 617; Wilson v, Niles 2 Hall, 358 ; Watkins v. Holman, 16 Peters^ 25 ; Barrow v. West, 28 Pick. 270 ; Whiting v, Johnson, 5 Dana, 890; Schibsby v. Westenholz, L. R. 6 Q. B. 155. The last case criticises Douglas V, Forrest^ 4 Bing. 703, on this point. See also London Ry. Co. v, Lindsay, 8 Macq. 99 ; The Mecca, 6 P. D. 106, reversing 5 P. D. 28 ; Roasillon v, Rousillon, 14Ch. D. 851. 802 ESTOPPEL BT RfiCOBD. [CBAP. VI. personam when under consideration in the courts of any other state or country.^ Indeed, judgments of the kind under consid* eration cannot be sued upon even in the court in which they were rendered,^ unless there be clear statutory authority for such a proceeding. § 5. Fraud. Whether the judgments of one state may be attacked on grounds of fraud, in the courts of another state, has been a subject of conflicting opinion.' The books contain many cases giving affirmative answers to the question.^ Among the cases to the contrary a decision of the Supreme Court of Ohio may be mentioned.^ The facts as they appear in the report of the case were these : The suit was debt upon a judgment recovered in Virginia. The defendant in his first plea pleaded in general terms that the judgment sued upon was obtained by fraud ; and in the second and third pleas the fraud relied upon was specially allied. Issue of fact was joined upon the first, and a demurrer was entered to the second and third pleas ; and the demurrer was sustained.^ ^ Buchanan v. Rncker, 9 last* 19S ; Shumway v. Stillma2k» 4 Cow. 292 ; B. a 1 Camp. 65 ; Smith o. Nioolls, 7 Hunt v. Hunt, 72 N. Y. 217. See Scott, 147 ; 8. c. 5 Bing. N. C. 208 ; Lucas ©. Bank of Darien, 2 Stewt 280. Becquet v. MacCarthy, 2 Barn. & Ad. * Anderson o. Anderson, 8 Ohio, 108. 951 ; Vanquelin v. Bouard, 15 C. B. ^ * It is remarkable,' said the court, N. 8. 341 ; Meeus v. Thelluason, 8 Ex. ' that this question has never received 638. See also the authorities cited in a precise determination. The books the notes to the preceding pages. abound so fully in the general doctrine * Cooper r. Reynolds, 10 WaU. 308; that fraud avoids all judicial acts, and Oalpiii V. Page, 18 Wall. 850. See also the proposition is so often asserted in ante, p. 297, note 1. Such judgments terms which import that a judgment become exhausted with the dis{H)eition may for that cause be impeached col- of the property attached. Cooper v. laterally, that one would expect to Reynolds, supra. meet ^ith several cases in which the • Where Congress has exclusive ju- question has been directly adjudged, risdiction, it may prescribe the forum in In Borden v. Fitch, 15 Johns. 121, the which alone a judgment may be im- defence was placed on the ground of peached for fraud, as e. g. in regard to want of jurisdiction in the Supreme fraudulent proceedings in bankruptcy. Court of Vermont to decree a divorce ; Burpee v. Sparhawk, 108 Mass. Ill ; the defendant to the petition residing Way V, Howe, lb. 502 ; Corey v. Kip- in another state, and having no notice ley, 57 Maine, 69 ; Ocean Bank o. of the proceedings. It is, however, sairf Olcott^ 46 N. Y. 12. by the court that as the decree was ^ Holt o. Alloway, 2 Blackf. 108 ; obtained by false and fhiudnlent lepre- Borden v. Fitch, 15 Johns. 121 ; An- aentations, it was void ; and Fermor's draws v, Montgomery, 19 Johns. 162 ; Case, 8 Coke, 77, ia relied upon as the SECT. T.] FOREIGN JUDGlfENTS IN PERSONAM. SOS In a case in the Court of Chanoeiy of New York ^ the com- plcuuant sought to restrain the defendants from prosecuting a suit in the Supreme Court upon a judgment recovered by them against the complainant in Massachusetts. His bill alleged that the judgment referred to had not been entered, filed, or docketed, at the time allied in the declaration in the Supreme Court, or for many years thereafter; that no verdict was ever rendered, and that there had been no assessmient of damages ; that the bI- l%od judgment had been entered some three years after the time stated in the declaration through the mistake or collusion of the derk and by the fraud and procurement of the defendants in the present .suit, or their agents, without lawful warrant or authority. The bill was demurred to, and the demurrer sustained on appeal Chancellor Walworth said that if the judgment had been only aathoritj. . . . But it is impor- the efficacy of foreign judgments, what tant to examine Fermor's Case. It was shall we Ray of the attempt to impeach a Ull in ehanoery to annul a fine ; that ooUateiaUy a judgment of a sister stata^ la, it was a proceeding directly instituted which has aU the force and validity of togetridofajudgmentatlaw. Richard a domestic judgment ? That it cannot Fermor, the plaintiff, demised land to be vindicated either upon principle or thedefendant, Thomas Smith, for twenty- authority, and that although loose dicta one years. Afterwards Smith fraudu* in abuudance may be found to counte- lently levied a fine to bar the plaintiff nance it, yet that it has no root either in of the inheritance. And it appears to TSnglish or American jurisprudeiioe.' have been a great question then whether The learned judge was mistaken in the the plaintiff could be relieved even in statement that there had been no prior chancery ; for it is said that it was de- determination of the question at the bated two days before all the judges of time of the decision of this case. The England and the barons of the Ex- point had been raised several years ear^ chequer, when it was finally determined lier in Massachusetts, and the same rule in his favor. So that Fermor's Case, had been declared. McBae e. Mattoon, so far from being an authority in sup- 13 Pick. 58. See Homer v. Fish, 1 Pick, port of the position that a judgment 485. The court in the case cited said may be impeached collaterally, is an that if this were not the law there would authority the other way. . . . With re* be no end of litigation. If the first gard even to foreign judgments there judgment were to be impeached for appears now to be the strongest inolina- fraud, the second was liable to the same tion to de|)art from the doctrine that attack, and the third also, and so on. tbey are only prima facie evidence.* The law would become a game of frauds, After roferring to cases already consid- in which the greatest rogue would be- ered, holding to the oonolusiveness of come the most successful player. The foreign judgments (Tarleton v. Tarleton, doctrine of this case was recently held 4 Maule ft S. 20 ; Boucher i;. Lawson, by the Supreme Court of Connecticut. Gas. temp. Hanlw. 89 ; Martin v. Nicolls, Sanford v. Sanford, 28 Conn. 6, 28. 8 Simons, 468), the court proceeds : ' If ^ Bicknell v. Field, 8 Paige, 440. mioh IB the Ti«w which is now taken, See Coke, Litt 852 a ; Comyn's « A. D. 1164-1189. Digest, Estoppel (A. 2) ; Stratton v. ^ Placita Anglo-Nonnannica, 175, Bastall, 2 T. R. 366 ; Lampon v. Corke, 177 ; Histoiy of Procedure in England, 5 Bam. & Ad. 606, 611. That a mere 717. writing releasing rights of action con* * Ante, p. 87, note, cemiug land though valid does not af- ^ Stubbs's Select Charten^ 176, feet the land in the hands of a grantee 2d ed. CHAP. YII.] PBEUMINART VIEW : THB SEAL. 881 By the close, however, of the twelfth century seals had come iuto general use by landholders and by traders, and especially by the money-lending Jews; the idea having now gained as- cendency that the seal itself, besides affording authentication, somehow imported verity, and gave to the instniment to which it was appended its peculiar efficacy. From that time until the present day the use of a seal has been attended with the gravest consequences even in cases in which the fact of its use would at first have brought upon its owner nothing but ridicule and con- tempt This view of a seal as importing of itself absolute verity reached a height of absurdity when, from the majestic seal of the king, of an archbishop, or of an abbot of a monastery, affixed and suspended to a parchment with a dignity befitting the owner, it came to pass that the scrawl of a scrivener's pen would answer the same high purpose. And when it came to this, perhaps before it had quite come to this, the revulsion of intelligent men had become such as to cause the legislatures of some of our states (as of Tennessee) to abolish the distinction in favor of seals, and to declare that the special efficacy of an ordinary instrument should no longer depend upon the addi- tion of wax, wafer, or scrawL In such states the question of estoppel by statements and recitals in written instruments must depend upon intention, to be determined (from the writing itself) by the consideration whether the statement or recital was intended to furnish a basis of action by the parties ; in other words, whether they intended to bind themselves by contract that the facts should be as stated.^ 1 That the estoppel prevails in Ten- Carpenter v. Boiler, 8 Mees. & W. 200, nesaee, though the seal has lost its force 212, where Parke, B. says that a recital there, see Rankin v. Warner, 2 Lea, 802; in an Instrument not nnder seal may be Buchanan v. Rones, 2 Baxter, 275. such as to be conclusive. See Delaney Perhaps, however, the estoppel would v. Dutcher, 23 Minn. 873 ; Stewart v. there arise only upon proof that the re« Metcalf, 68 lU. 100. But it should be eital had been acted upon by the party clear that the recital in a simple con- alleging it In this particiQar the es- tract is of the essence of the contract ; toppel would resemble an estoppel in otherwise there will be no estoppel to pais. Indeed, the courts in recent times dispute it. Feiguson v. Milliken, 42 appear inclined to treat the estoppel by Mich. 441 ; Snowden «. Grice, 62 Ga. deed as resting on contract, a perfectly 615. See Newton v. Marshall, 62 intelligible basis, — a basis upon which Wis. 8. a large class of estoppels is arising. 382 ESTOPPEL BY DEED. [CHAP. VII. Other cases of estoppel by deed which stand or may well stand upon grounds independent of the seal, such as the efiTect of a warranty of title by a grantor of land conveying in fee before he has acquired the title, remain the same, no doubt, so far as not affected by legislation, as before ; the estoppel still arises.^ It is only history and association that require the con- sidemtion of such cases under the head of Estoppel by Deed. It should perhaps be added that the reader must not be misled into supposing that the author means to suggest that, in this letting down of the physical properties of the seal any more than in the loss of the idea from which it originally derived its efficacy, there has been any relaxation of the doctrine of estoppel by deed where that has not been effected by act of the legisla- ture.^ Besides, as we have intimated in the note, the doctrine has still sufficient reason for existence when based (not on the seal, but) on contract ; and it may be doubted if there is now much difference concerning recitals and statements between the law of those states in which the seal still retains its old efficacy and of those in which it has been made useless.^ An estoppel by deed^ is a preclusion against the competent parties to a valid sealed contract,'^ and their privies, to deny its force and effect by any evidence of inferior solemnity .• Such cannot allege any title or right in derogation of the deed. Thus, a grantor by deed with general warranty cannot set up any encumbrance against the grantee, not excepted in the deed,^ such as a right of way.^ Taking the definition and rule as the 1 Jones V. Morris, 61 Ala. 518. * TLis includes deeds of record. Eep- 3 See e. g. Cobb v. Fisher, 121 Mass. ley v. People, 12S III. 867. 169 ; Snow v. Moses, 53 Maine, 546. * An estoppel in pais may be set up * Indeed, one who derives title nnder in bar of an estoppel by deed. Piatt v, a will is bound thereby as much as he Squire, 12 Met. 494. But comp. Phil- would be under a deed. Taking under brick v. Shaw, 63 N. H. 81, 88. the will one is not permitted to dispute "^ Fisher v. Mining Co., 97 N. Oar. its provisions. Hill v. Den, 54 Cal. 95 ; 8. c. 94 K. Car. 897. 6; Noe v. Splivalo, ib. 207 ; Hyde v, * De Bochemont v. B. & M. IL, 64 Baldwin, 17 Pick. 808 ; post, chapter 21. N. H. 500. Indeed, it has been held * Attested, if of land, in a contest that a grantor cannot allege, in a suit against a purchaser from the grantor, for breach of warranty by his grantee, Chamberlain v. Spargur, 86 K. Y. 603. that a prior conveyance by the same But an unattested deed would be good grantor of the same premises was in* against the grantoTf to raise an estoppel valid. Hodges v, Latham, 98 N. Car. upon its covenants of warranty. Ib. 289. But why not ? p. 608 ; Wood v. Chapin, 8 Kern. 509. CHAP. YIL] PRELIMINARY VIEW : THE SEAL. 333 premise, we purpose in considering the subject before us to make two short general divisions, and to show, — 1. To whom the doctrine applies ; 2. To what it applies. It is obvious that under the first division we must present the doctrine in its relation, first; to parties ; secondly, to privies. Under the second division we purpose to show, first, the lim- itations of the doctrine ; secondly, the force of the doctrine in regard to recitals; thirdly, its force concerning after-acquired estates under conveyances of land; and fourthly, its force in relation to the release of dower. The estoppel arising from the relation of landlord and tenant and the like, not being dependent upon the existence of a deed, will be considered under Part III., Estoppel in Pais. The sub- ject will, however, be incidentally presented as occasion may require in the present Part IL, and particularly under Title by Estoppel. First, then, concerning the doctrine of estoppels by deed in relation to parties and privies. 884 XSTOPPEL BY DSED. [CHAP. YIIL CHAPTER VIIL PRELIMINARY VIEW: PARTIES AND PRIVISa The general rule upon this subject is the same as in the case of estoppels by record, namely, that only the parties to a deed ^ and those in privity with them can be bound by or take advan- tage of the estoppel created by the instrument The estoppel must be mutual.^ We proceed now to consider the meaning and operation of this rule* § 1. Parties, The rale is ilhist^ated by a case which recently came before the Supreme Court of Pennsylvania.^ The action was ejectment by Struthers against one Clark and his tenants. It appeared that Clark, being owner of the land in question, conveyed it by deed to certain persons some of whom subsequently joined in a mortgage with him to a stranger, which mortgage contained a recital that he (Clark) was the owner of eleven twenty-fourths of the land. Before this mortgage was recorded, but after its execution, the property was attached and sold on execution to the plaintiff. The tenants now alleged that Clark had no title when the attachment was served ; to which the plaintiff replied 1 A distinction has been made in Thompson, 129 Mass. 898 ; Smith v. regard to recitals of boundaries upon Graham, 34 Mich. 802 ; Hill v. Minor, streets, making the estoppel available 79 Ind. 48, 55 ; Price v. Pollock, 47 for some purposes in favor of the town Ind. 862 ; post, chapter 10) is commonly in which the land lies. Tobey v. Taun- based on the ground of implied cove- ton, 119 Mass. 404. But the distinction nant with the mortgagee. But even on is not sound. See post, p. 371, note 1. grounds of estoppel the rule is sustain- The nile that one who receives a con- able, since the admission or reprcsenta- veyance of land subject to a mortgage, tion is intended for the moitgagee. which he thereby a^umes, conclusively ^ Millard v. McMuUin, 68 N. Y. admits the binding force of the mort- 846 ; Glasgow v. Bnker, 72 Mo. 441. gage in favor of the mortgagee (Free- ' Sunderlin v, Strathera, 47 Penn. man v, Auld, 44 N. Y. 50 ; Johnson v, St. 411. SECT. I.] PBEUMINABY VIEW : PASTIES AND PRIVIES. 885 the recital in the mortgage as an estoppel Bat die court held the defence of the tenants good.^ This doctrine is also illustrated by a case in Ohio.^ An ac- tion had been brought for the assignment of dower in land which the defendant held under a sheriiTs deed made by vir« tue of an execution against the plaintiff's late husband. The defendant sought to protect himself uuder a deed firom the de- ceased and release of dower, made before the sheriff's sale but after the judgment, to third persons. The court refused to allow the alleged defence to be made. The defendant, the court ob- served, had never possessed himself of the title which he relied upon ; he did not claim under it, but by a title adverse to it and paramount He could not make the release available as a grant, 1 Mr. Justice Agnew, in dtiliveriDg the opinion, forcibly replied to the argo- opinion of the court, said : * There was ment of the plaintiff that it was a an interval of time between the date of case of estoppel in pais. * Nor was the the last deed and the date of the mort- recital,' he said, 'an admission ordecla- gage during which the tenancy was ration made to the plaintiff at the time wholly gone. How was the tenancy of the sale, or at any previous time, revived ? Only by the simple declara- He was not a party to the mortgage. It tion of Clark that he owned eleven was altogether res inter alios acta. If twenty-fourths, and the declaration or he saw it and did not know it was a certificate of his co-mortgagors to the mistake or a falsehood, still he was same fact. Thus, the mere written cer- not warranted in relying upon it. I tificate, as it were, of persons who were agree that if the plaintiff had been in- neither parties nor privies in estate, or dnced to purchase by anything said by in the suit brought to recover the estate, these mortgagors at the sale, or by rep- is made evidence to reinvest Clark with resentations made by them to him pre- title to these eleven parts ; and even viously, they would have been bound more, it was laid upon the jury with a by their declarations, and precluded binding instruction, on the ground that from averring the contrary to the preju- it operated as an estoppel upon persons dice of his title. But it is an unprece- who, after Clark had parted with his dented extension of the doctrine of title, stood in no relation or privity to equitable estoppel to hold that a man is him. ... On what principle of evi- bound to the world to make good what dence or law his naked declarations or he has said to any one if others choose those of a stranger could be used, first to to rely upon it. If every man may be renew or restore the tenancy, and then held liable not only to parties and priv- to estop, it is difficult to perceive. The ies to his deed, but to all mankind, to effect of it is to let into possession one make good every introdnctoiy recital who has shown no title whatever, con- which the deed contains, it behooves trary to the first principle of the law of him to avoid all recitals, and be careful ejectment, and thus to oust persons hold- what scrivener he employs. Such is ing no fiduciary relation, and thereby to not the law, and there are no authorities affect the title of Clark*s vendees, who, which assert it.' after their deeds, became the landlords.' * Kitzmiller v. Rensselaer, 10 Ohio, Mr. Justice Strong, in a concurring St. 63. 836 ESTOPPEL BY DEED. [CHAP. VIII. for he was not a party to it ; nor could the release operate in his favor by way of estoppel, for a stranger could not be bound by or take advantage of an estoppel Persons acting under the authority of a grantee by deed are not regarded as strangers.^ In the case cited one Osgood had executed a deed of land to a corporation styled the ' Proprietors of the South Chapel in Fryeburg.* In this deed it was stipu- lated that a church should be erected on the land ' for the use of the Methodist Episcopal Society so long as they shall furnish preachers acceptable to a majority of the proprietors/ The church was built, and after having been occupied for a number of years was abandoned and suffered to fall out of repair. After a considerable interval the church was repaired by the defend- ants under the direction of persons acting as the superintending committee of the proprietors, and reoccupied; whereupon the heirs of Osgood brought the present action of trespass for the entering and repairing the church. The defendants alleged the deed as an estoppel; while the plaintiffs contended that they were strangers, and not entitled to take advantage of it The court decided in favor of the defendants, saying that it could not be maintained that they, acting under persons who were at all events de facto the superintending committee of the proprietors, a majority of whom were among the original associ- ates and proprietors, were such strangers and wrongdoers as to deprive them of the right to assert the estoppel. On the other hand, a person is not to be regarded as a party to a deed executed in his favor, if he does not accept or claim under it* The plaintiff in the first case referred to brought an action for dower, claiming under a mortgage deed by her late hus- band to one Ware, which by assignment to K and sundry mesne conveyances was traced to the defendant Counsel on her be- half contended that the defendant was estopped by this mort- gage to deny the plaintiff's right to dower in the land. But the court said that sucli could not be its legal effect There was no evidence in the case that K ever claimed title under this mortgage, or in fact that he had any knowledge that it had ever 1 Osgood V. Abbott, 58 Maine, 73. St. Lonis R Co. v. BelleviUe, 122 III. a Kidder v. BlaisdeU, 45 Maine, 461; 376. SBCT. I.] PBEUHINABY YIEW : PARTIES AND PRIVIES. 337 been assigned to him. It was not recorded until March 10» 1858, nearly forty years after its date. From whence the de- mandant obtained this instrument did not appear, nor did it ap- pear that the tenant had any knowledge of its existence before it was produced on trial Under this state of facts he was not affected thereby. A deed further^ like a jndgment, estops the parties only io the character in which they execute it^ The plaintiff as admiu- istratrix of the estate of her husband executed a deed of real es- tate containing a covenant of warranty against the demands of all persons claiming under herself. She now brought an action for dower in the land, and the court held that she was entitled to recover. Mr. Justice Cooley, who delivered the judgment^ said that there was no ground for putting a construction upon the deed that would estop the plaintiff from claiming dower. The deed had been given by her in her representative character as administratrix and signed by her as such. The covenant against her own acts referred to herself in such representative character, and it was not to be presumed that she had precluded herself from asserting h^ individual rights. Though it was true the covenant was not essential to the validity of the deed, still it was not meaningless, and might under some circumstances, if the sale had proved defective, have given the grantee a right of action.^ The same principle appears in the case of Metters v. Brown.* That was an ejectment to recover possession of a piece of land, in which the plaintiff sued as administrator of his mother. He sought to recover the premises by reason of a term of which it was said his mother died possessed, the same devolving upon him as administrator. The defence was that the defendant had been in possession under a mortgage by the plaintiff in bis mother^s lifetima The defendant contended that the plain- 1 Wri^ o. De Groff, 14 Mich. 104 ; where it is held that a wife may buy Doe (L Hornby v. Glenn, 1 Ad. & K and enforce a note, and foreclose a 49 ; Smith v. Penny, 44 Cal. 162 ; mortgage aecnring it, though she had Hall V. lyfatthews, 68 Ga. 490 ; Gould- joined her husband in executing the south V, Coleman, 57 Ga. 426 ; Trent- mortgage. Trentman «. £ldridge» 98 V. Eldridge, 98 Ind. 525, 581. Ind. 525, 531. s Wright V. De Groff, supra. See * 1 HnrL & C. 686* Oariihers v. Stoart, 87 Ind. 427, 22 888 ESTOPPEL BY DEED. [CHAP. VIII. tiff was estopped from claiming the term by reason of his mort- gage. But the court held tliat there was no estoppel.^ Again, in Trentman v. Eldridge * where a wife had joined her husband in a mortgage with warranty upon his property to se- cure a debt of his, it was held that she was not estopped to claim the land in another capacity. The effect of the deed upon the wife, it was observed, did not extend beyond her interest in the specific property described therein ; rights vesting in her in some other character than that of wife were not affected by what she had done as wife. If, however, a guardian sell land of his ward, with a covenant that he was duly authorized to sell the premises, he cannot after- wards set up a claim to the land in his own right.^ The court observed in the authority cited that the case came within the well-established rule that a party was not allowed to plead or prove any matter inconsistent with the terms of his deed.^ 1 ' In our opinion,* said Channel, B. demandants, by which they released and speaking for the court, 'the plaintiff, quitclaimed unto him all the right of who sues as administrator of his mother, which the testator, their father, die citing Cent. R. Co., 1 Black, 204 ; Lindsey United States v. Kilpatrick, 9 Wheat V, Hawee, 2 Black, 654 { Railroad COw 785. In State •. Brewer it is declared 9, Schurmeir, 7 Wall. 272 ; Land Co. that those who deal with officers of the 9. Saunders, 108 U. S. 816 ; note 8, state are honnd to know the extent of p. 840. their authority. 342 ESTOPPEL BT DEED. [CHAP. VIII. of Taylor v, Needham.' The question raised on demurrer was whether the plea of non demisit was good when pleaded hj an assignee who had )iad the estate of the lessee conveyed to him, which estate had been created by indenture. It was held that it was not.* An illustration of the doctrine of privity is also found in the case of Bates v. Norcross,* which was a vrrit of entry. The de- fendant relied upon a deed from one Packard, to whom the premises had been conveyed by Ebenezer, Davison with general covenants of seisin and warranty. He then proved that after Davison died the plaintiff married his only daughter and heir at law, and that she received assets by descent from her father of a greater value than the land in controversy. The plaintiff relied upon a title paramount to that of Davison. The defendant now ^ 2 Taunt 279. would be contiAiy to aU principle. But * Mansfield, C. J. said : ' There is it does not rest merely on the general nothing more clear than that where a principle ; for if you look into aU the lessee takes an estate by indenture, he books upon estoppel you find it laid is not at liberty to plead nil habtdt in . down that parties and privies are es- tenementis, nor in any way to dispute topped, and he who takes an estate the title of his lessor. Now, this plea under a deed is privy in estate, and puts in issue amongst other matters the therefore never can be in a better title of the lessor. It is truly stated for situation than he from whom he takes the defendant that in cases of a grant it. I cannot distinguish Parker v. or feoffment a stranger may plead "did Manning, 7 T. R. 537, from this case, not grant, or did not enfeoff," and that though it ia the converse. In a late plea denies not only the existence but case in this court WUliams, Sergeant, the efiScacy of the supposed grant or by an able ailment for a devisee feoffment. It brings in issue, therefore, endeavored to convince us that a re- the title of the grantor as well as the oovery waa void because there was no operation of the deed, and that plea tenant to the praecipe ; but it was an- would be a proper plea to bring in issue swered for the heir that the devisor the execution, construction, and effi- was tenant on the record and therefore cacy of any deed of demise. Then the estopped from disputing the recovery, question comes whether the assignee and the devisee consequently was ea- of the lease may be allowed to contro- topped. In the case of Trevivan ». vert the title of the lessor when the Lawrence, 1 Salk. 276 .. . a judgment lessee under whom he derives could not in scire facias against terre-tenants, controvert the title of the lessor; so which recited the original judgment that the assignee should have a better as of the wrong term, was held to be right than he from whom he derives it. an estoppel. For these reasons the de- Exclusive of all the dicta it would be a fendant is as much estopped from plead- very odd thing in the law of any coun- ing this plea as if he had been the try if A could take, by any fonn of original lessee.' conveyance, a greater or better right * 17 Pick. 14. than he had who conveys it to him ; it SECT. II.] PBEUMINABT VIEW : PARTIES AND PRIVIES. 848 contended that the plaintiff was rebutted by the covenants in the deed of Davison; and of this opinion was the court.^ No privity exists between creditor and debtor; there is neither devolution nor subordination of rights in the relation.' In the case cited Waters conveyed to Spencer all his right, title, and interest in certain land with general warranty, acknowl- edging receipt- of payment, and took judgment for a portion of the purchase-money, which became a lien on the land. Subse- quently other creditors obtained judgments against Spencer, which were levied on this land, and the proceeds of sale paid into court. These creditors now sought to take advantage of Waters's deed to Spencer, and to exclude the former from any participation in the distribution. But the court held that there was no estoppel.^ ^ 'We do Dot consider the doctrine be levied upon the body or estate of of collateral warranty/ said Mr. Jos- the husband.' tice Putnam in delivering judgment, On the other hand, ' if a father dis- ' as applicable to the case. If Davison seise his son, and levy a fine, this fine were living and demanding the land, he will not bind the son as heir and privy, would be estopped by his deed. So, if for he does not claim from his father ; his sole heir were suing for it, she would or if a father be tenant for life, remain- be estopped, being privy both in blood der to his son in fee, and levy a fine, and estate. The warranty of her an- this will not bind the son as privy, for cestor has descended upon her, and, his reversion ; or if the father levy a as the case finds, with assets of greater fine of the lands of the mother, the son value than the land. This is a case is not bound.' Edwards r. Rogers, W. of lineal warranty with assets, so far Jones, 460 ; Doe d. Marchant v. Erring- as the daughter, sole heir and wife ton, 6 Bing. N. C. 79. of the demandant, is concerned. She « Waters's Appeal, 85 Penn. St. 623. at the time of her marriage was un- * Woodward, J. said : ' Estoppels doubtedly liable, and her liability de- may be by deed, but estoppels by deed volved upon the husband and wife. If avail only in favor of parties and privies, he were to be considered a purchaser. Now, the judgment creditors who seek for the valuable consideration of mar- to postpone Waters are not privies of riage, of all that came to the wife, it Spencer either in blood, in law, or by was cum onere. He and his wife be- estate. Not in blood, for no relation- came and were seised of the real estate ship is alleged ; nor in law, for the legal in her right ; and he took the personal relation between debtor and cj^itor is estate absolutely, but subject to all the one of antagonism rather than of con- liability to re8{)ond to the warranty of fidence or of mutual dependence ; nor her ancestor. If the demandant were by estate, for they have none in the to recover, the tenant would have an debtor's land. What proves that they action against the demandant and his have no interest in the land is that a wife to recover back the value ; and judgment against one of these judgment the judfouent and execution would be creditors would not be even a lien on against the husband and wife, and might this land. The truth is the relation of 844 ESTOPPEL BT DEED. [CHAP. VIIT. There has been some question among the authorities in regaitl to the effect of an acceptance of a conveyance of real estate in which there was no relinquishment of the right of dower. It was formerly held in New York, in Maine, and elsewhere that the mere acceptance of such a grant would preclude the grantee from disputing the claim of the grantor's widow to dower^ In several of these cases, as in Wedge v, Moore, the grantee set up no other claim to the land than that under the convey- ance by the husband of the demandant ; and the widow's titie was therefore made out These were not properly cases of es- toppel. The office of an estoppel is to supply the want of other evidence of a fact But so far as any of these cases hold that the grantee cannot set up the title of a third person as para- mount to that of the demandant's husband, which title the tenant has acquired, they have been overruled * If, however, the deed be a conveyance in fee simple, and the grantee assert against the widow no paramount title, she will be entitled to dower ;^ not, indeed, because of any estoppel, but because these facts show that she is entitled to it. In such a case the grantee cannot allege, for instance, that the conveyance was made in fraud of the grantoi^s creditors.^ That is a matter for them ; and until they assert their rights over it, the grantee must yield to the widow's claim. Nor in such cases can the grantee show a defect in the grantor's title * So too the gran- tee may possibly be estopped in a litigation for dower to deny judgment creditors to their debtor^s real Naaon v. Allen, 6 Oreenl. 243 ; Hains estate is anomalous. They have a lien «. Gardner, 10 Maine, 383 ; Gayle v. upon it by rirtae of statute law, but Price, 5 Rich. 526 ; Dashiel v. Collier, they have no interest in it such as 4 J. J. Marsh. 602. See also Hitch- makes them privies in estate with the cock v. Harrington, 6 Johns. 290 ; debtor. The covenants, then, express Wedge v. Moore, 6 Gush. 8 ; Lewis v, or implied, of Waters's deed cannot Meserve, 61 Maine, 374. operate in favor of Spencer's creditors * Sparrow r. Kingman, 1 Comst. as an estoppel by deed ; and we do not 242 ; Foster o. Dwinel, 49 Maine, 44 ; understand any such effect to have been Campbell r. Knights, 24 Maine, 332 ; intended by what was said of the deed Gammon r. Freeman, 31 Maine, 243. in Altman v. Klingensmith.' 6 Watts, " Kimball v, Kimball, 2 Greenl. 226 ; 445. Wedge v, Moore, 6 Cush. 8 ; Gayle o. 1 Bancroft v. White, 1 Caines, 185 ; Price, 5 Rich. 626 ; Dashiel v. Collif r, Bowne v. Potter, 17 Wend. 164 ; Sher- 4 J. J. Marsh. 601. wood V. Vandenburgh, 2 Hill, 303 ; * Kimball v. Kimball, supra, secus. Kimball v. Kimball, 2 GreenL 226 ; • Gayle v. Price, supra. SECT, n.] PBEUMINABT VIEW : PAB3IB3 AND PRIVIES. S45 the widow's right if there be a specific recital that she is entitled to dower in the land, or that which is tantamount to such a recital, since in respect of her dower interest she is privy in law with the grantor.^ It should be observed, however, that such a recital is collateral to the purposes of the deed; and if the widow was not a party to it, and perhaps even if she were a party, it is worthy a queiy if the grantee could not show that the admission was made under a mistake, and that he has sub- sequently acquired a paramount title.* It does not in modern times constitute a case of privity for the purposes of estoppel to show that one man holds a convey- ance of land from another.^ The modem grantee, unlike a feoffee, acquires the property for himself, and his &ith is not pledged to maintain the title of the grantor^ A relation of privity is a relation of dependence, not of independence or of superiority.^ Between the grantor and grantee the recitals of the deed will doubtless be conclusive evidence in a proper case ; but the instrument will not for all purposes* prevent the grantee from asserting a paramount title which he has acquired from a third person.^ And this being the case between grantor and ^ 4 Coke, Litt 852 a; Campbell v. defendant may show that the plaintiff's Knights, 24 Maine, 882 (the recital did title is not good. Wadleigh v. Maia- not go so &r) ; Wieoe «L Marbnt, 55 thon Bank, 58 Wis. 546. GkL 613. • See post, p. 856. * Carpenter 9. BaUer, 8 Mees. ^ W. ^ Blight «. Rochester, 7 Wheat 585 ; 209. Bobertson v. Pickrell, 109 U. S. 608, * This is strikingly illustrated by 615 ; Grosholx v, Newman, 21 WalL lUrchild v. McArchnr, 15 Grey, 526, 481 ; Osterhout v. Shoemaker, 8 Hill, and by Foster v. Wightman, 123 Mass. 513 ; Sands v. Davis, 40 Mich. 14 ; 100 ; in which cases it is held that the Crumb v. Wright, 97 Mo. 13, 18, 19 ; grantee of a mortgagor, whose mort- Ayerill v. Wilson, 4 Barb. 180 ; Wat- gisge was obtained by the mortgagee kins v. Holman, 16 Peters, 25, 54 ; So- through fraud, cannot avail himself of ciety for Prop, of Gospel v. Pawlet, 4 the fraud practised upon his grantor, in Peters, 480, 506 ; Riddle «. Murphy, a proceeding to enforce the mortgage. 7 Seig. & R. 285 ; Huntington «. « Blight V. Rochester, 7 Wheat 585 ; Pritchard, 11 8medes& M. 827; Gwinn Bobertson «. Pickrall, 109 U. S. 608, v. Smith, 55 Ga. 145 ; Kansas Pacific 615; Cum mings V. Powell, 97 Mo. 524, Ry. Co. v. Dunmeyer, 24 Kan. 725; 536 ; Cooper v. Watson, 78 Ala. 252. Voorhies «. White, 2 Marsh. 27 ; Win- The old estoppel (Coke, Litt 852 a) lock v. Hardy, 4 Litt 272 ; Weil ». rested on tenure and dependence. Uzsell, 92 K. Car. 515 ; Gaylord v, ^ A claims land under a tax title ; B Respass» ib. 558 ; Wilcoxon «. Osbom, claims the same land under a later tax 77 Mo. 621, 629 ; Den d. Johnson v, title. In trsspass by A against B, the Watts, 1 Jones, 228 ; Doe d. Worsley 846 £8T0PP£L BT DEED. [CHAP, VIII. grantee, it follows that the grantee may assert a title which he has acquired paramount to that of such grantor in a contest with one who claims under the same grantor; and it is not broadly true to say, as is sometimes said,^ that when two persons trace title to the same grantor, each is estopped against the other.^ But if the grantee assert no other right or title than that from the common grantor, he will be precluded from deny- ing that his gitmtor had title when he conveyed.^ This, how- V. Johnson, 6 Jones, 72 ; Kerbourgh v. & R. 236 ; Huntington p. Pritchard, 11 Vance, 6 Baxter,' 110. Contra, dictum Sinedes & M. 827; Brock v. Young, 5 in McCIure v. Englehardt, 17 111. 47 Ala. 684 ; Pollard v, Cocke, 19 Ala. (and some early cases there cited), over- 188; Long v. Wilkinson, 67 Ala. 259 ; ruled in Owen v. Robbins, 19 111. 646. Hasselman t;. United States Mortg. Co., See Campau v. Campau, 87 Mich. 245. 97 Ind. 866 ; Ketchum i;. Schicketanz, So, in case the parties trace title to the 73 Ind. 187 ; Bond v, Canroll, 71 Wis. same instrument alone, and one of them 847; Doyle v. Wade, 23 Fla. 90, 98. establishes its identity at the trial, the See also Board v. Board, L. R. 9 Q. B. other cannot then dispute its genuine- 48 ; Stelon w. MuUis, 92 N. Car. 623, ness. Williams ». Conger, 126 U. S. 397. 628 ; Armstrong v. Wheeler, 62 Conn. 1 See e. g. Long v. Wilkinson, 67 428. The authorities merely declare Ala. 269; Wisconsin Central R. Co. that a plaintiff's case is made out prima V. Wisconsin Land Co., 71 Wis. 94, 106; facie when it appears that the defendant Schwallback v, Chicago R. Co., 69 Wis. claims under the same common grantor; 292, 299. Also Cooper v. Watson, 78 and the question is one of the state Ala. 262, showing the true rule. of proof only. They distinctly show ^ To speak of a person being estopped that the defendant may overturn the to deny, against subsequent creditors plaintiff's case by showing a paramount influenced by his conduct, that he is a title under which he (the defendant) stockholder in a corporation by privity claims against that of the common (Fisher v. Seligman, 76 Mo. 13, 28) is grantor. A questionable distinction misleading. Supra, p. 343, note 8. taken in California may in this con- * Cummings v, Powell, 97 Mo. 624, nection be noticed. While it is there 686 ; Brazee v. Schofield, 124 U. S. agreed that no estoppel arises from the 496, 603 ; Pendley v. Madison, 83 Ala. sole fact of a common title under which 484 ; Bickett v. Nash, 101 N. Car. both plaintiff and defendant claim, it is 679, 683 ; Fisher v. Mining Co., 94 N. held that for the puq)ose of enabling an Car. 397 ; Curlee v. Smith, 91 N. Car. ousted co-tenant to obtain possession 172 ; Ives v. Sawyer, 4 Dev. & B. 61 ; there is an estoppel upon his associate Den d. Love v. Gates, lb. 868 ; Den d. to set up an outstanding title. But Gilliam v. Bird, 8 Ired. 280 ; Kinsman after the co-tenant has thus regained V. Loomis, 11 Ohio, 476 ; Robertson v. possession, either may proceed against Pickrell, 109 U. S. 608, 616; Boiling the other under a paramount title. V, Teel, 76 Va. 487; Wilcoxon v. Os- Olney v. Sawyer, 64 Cal. 879 ; Bom- born, 77 Mo. 621, 629 ; Brown v. Brown, heimer v. Baldwin, 42 Gal. 27. This 46 Mo. 412 ; Keith v. Keith, 104 111. distinction appears to have been fixed 397 ; Wobum v. Henshaw, 101 Mass. upon to save the case of Lawrence v. 193 ; Grand Tower Mining Co. r. Gill, Webster, 44 Cal. 886, which had justly 111 111. 641 ; Riddle v. Murphy, 7 Serg. denied the existence of any estoppeL SECT. II.] PBEUMINART VIEW : PARTIES AND PRiyiE& 847 ever, though sometimes called a case of privity, rests on another ground. If A can show by his deed that certain rights in lands claimed by C had before been granted to him (A) by B, under whom alone C claims, C must yield to A. This is not because C is in privity with B, but because A shows the better right. It is much the same thing to say that one who enters and holds under the title alone of his grantor will be estopped to deny the efficacy of the title conveyed when sued in ejectment for breach of a valid condition in the deed.^ Nor is it a case of privity where a second mortgagee of land with notice of an earlier mort- gage is postponed to that mortgage unless he can show that it was fraudulent, though such has sometimes been spoken of as a case of privity.^ If the second mortgagee get nothing, it is simply because the claim of the first has exhausted the estate.^ Privity in this as in other branches of the law of estoppel, it should be observed, has a narrower signification than privity in contract. In the law of estoppel privity signifies (1) merely siiccession of rights, that is, the devolution, in whole or in part, of the rights and duties of one person upon another, as in the case of the succession of an assignee in bankruptcy to the estate of the bankrupt on the one hand, and to the rights of the creditors on the other,* or (2) the derivation of rights by one person from and holding in subordination to those of another, as in the case of a tenant.^ No one can be bound by or take advantage of the ^ Cowell p. Springs Co., 100 U. S. to be precluded from contesting the 55, citing GiU v. Fauntleroy, 8 B. Mon. mor^ge. Scates v. King, 110 111. 456. 185 ; Miller v. Shacklefor, 4 Dana, And a second assignee of property is not 287, 288 ; Fitch v. Baldwin, 17 Johns, in privity with the first, so as to be 161. We shall have occasion to recur bound by an estoppel existing against to this subject in other connections the first. Weyh v. Boylan, 85 N. Y. hereafter. 894. 3 Cook V. Parham, 68 Ala. 456. In * This case embraces both the privies that case the first mortgagee had for- in blood and the privies in law of Coke, tified his claim by judgment for the See Coke, Litt. 852 a, 852 b. Privity debt, but that made no difference ; there in estate as applied to the law of estop- was no privity. The recitals or cove- pel is well explained in 20 Am. Law nants of the earlier mortgage could not Bev. 407 et seq. fall upon the later mortgagee as they ^ The well-known definition of Green - would fall upon an heir. leaf may come to the same thing. 'Priv- * So a purchaser from a mortgagor is ity,* he says, ' denotes miUtuU or sue- not in privity with the mortgagor so as oessive relationship to the same rights 848 BSTOPPBL BY DEED. [CHAP. VIIL estoppel of another who does not succeed or hold subordinately to his position.^ of property.* Ev. § 535. See Litch- being in possession, creates no estoppel, field V. Goodnow, 128 U. S. 549. such as bound the mortgagor, to dispute Perhaps ' mutual * here is intended to the validity of the mortgage. Gorton signify * subordinate ; ' if not, the defi- v. Roach, 46 Mich. 294. On the other nition in this particular must be under- hand, tenant in dower and tenant by tiie stood to refer to the wider or different curtesy are privies in law with the de- notion of ' privity of contract.' cedent, and so far as they hold in that ^ Shay V. McNamara* 54 Cal. 159 ; title are bound by the estoppels that Campbell v. Hall, 16 N. Y. 575 ; Doe bound the decedent Coke, Litt 352 b ; V. Derby, 1 Ad. & £. 763. Marrying Doe v. Skirrow, 2 Nev. & P. 123. the widow of a mortgagor^ the widow a£CT. Lj LIMITATIONS OF THE DOCTRINE. 849 CHAPTER IX. PRELIMINARY VIEW: LIMITATIONS OF THE DOCTRINE. Having now considered the first division of our subject and detennined the question to whom estoppels by deed apply, and the general force of the rule upon the subject, we come to the second and more extensive division, in which we purpose to show to what the definition and rule given in the opening of the subject apply. And first, of the limitations of the same. § 1. The DMd must be valid. It is essential to the estoppel by deed that the deed itself (which of course must be delivered ^) should be a valid instru- ment; a void instrument, though under seal, does not work an estoppel at law or in equity.* For example, if officers of a cor- poration make a mortgage for it which the corporation itself has no power to make, the corporation may deny all authority to exe- cute the deed.^ In the first case cited the trustees of a turnpike, ^ Koxme v. Nourse, 116 Mass. 101. Gary, 39 Kans. 178. Bat see Wilson v, * Moses V. MnClain, 82 Ala. 870 ; Western Land Co., 77 N. Car. 445, Melntosh v. Parker, ib. 238 ; Shorman holding that a deed executed in violation v. Eakin, 47 Ark. 851, 354 (contracts of an injunction may still estop the contrary to public policy, in regard to grantor. which see also Klenk v, Knobel, 87 Ark. « Fairtitle v, Gilbert, 2 T. R. 169 ; 807 ; Webb v. Davis, ib. 565) ; Caff^ In re Companies Acts, 21 Q. B. D. 801. V. Dudgeon, 38 Ind. 512; Merriam v. Chitty, J. : 'It is well established that Boston R. Co., 117 Mass. 247 ; Conant a corporate body cannot be estopped by v. Newton, 126 Mass. 105 ; Pells v. deed or otherwise from showing that it Webquish, 129 Mass. 469 ; Mason tr. had no power to do that which it pur- Mason, 140 Mass. 63 (thtit a conveyance ports to have done.* See post, chapter 16. by a wife — though sui juris — in the So a principal may deny the power of lifetime of her husband of her doww an agent of limited authority to make a intereaif is void, and cxeates no estoppel particular representation, in ordinary against her after her husband's death) ; cases. Cox v, Bruce, 18 Q. B. D. 147, James «» WildiPr, 2& Minn. 305; Sberlen G. A.; Bamettv. South Londoa Tram- V. Whelen, 41 Wis. 88. See Flenfaeimn. ways Co., ib. 815, C. A. 860 ESTOPPEL BY DEED. [CHAP. IX. having authority to erect toll-houses and to mortgage the tolls, but having no power, as the court held, to mortgage the toll- houses or gates, in order to raise funds executed to the lessors of the plaintifiT mortgages of the tolls, and also of the toll-houses and toll-gates. The mortgagees now brought an action of eject- ment to i-ecover possession of the toll-houses and gates. The trustees objected that the act did not warrant them in mort- gaging this property, and judgment of nonsuit was given in the court below against the plaintiff. On a motion to set aside the nonsuit it was contended that as some of the defendants had joined in executing the conveyance, they were estopped from taking that objection ; but the court ruled otherwise. Mr. Jus- tice Ashhurst, in delivering judgment, said that in general the party granting is estopped by his deed to say he had no interest ; but that general principle did not apply to this case, where the trustees were not acting for their own benefit, but for the bene- fit of the public. It would be hard that other creditors who were not parties to the deed should lose the benefit which the act had given them. Besides, there was a still further reason why the trustees should not be estopped; this was a public act of Parliament, and the court were bound to take notice that the trustees under this act had no power to mortgage the toll-houses. This deed, therefore, could not operate in direct opposition to an act of Parliament, which negatived the estoppel.^ This last position taken by the learned judge has been quali- fied and explained in a later case.* The case cited was an eject- ment by a mortgagee of tolls of a certain bridge. The plaintiff was not the first mortgagee, and was not empowered to recover as a trustee for alL But the ordinary principle was relied on, that a grantor cannot dispute against his grantee his own title to what he has assumed to convey. The application of the principle was, however, denied on account of the public character of the defendant ; counsel relying on the above-cited dictum of Mr. Justice Ashhurst. Lord Denman, after quoting the state- ment, said that that observation proceeded on the presumption that the contents of the act were known to both the contracting 1 See Doe d. Baggaley v. Hares, 4 ^ Doe d. Levy v. Horne, 3 Q. B. Barn. & Ad. 438. 757, 766. SECT. I.] UMITATIONS OP THE DOCTRINE. 851 parties, and qualified any contract into which they might enter in execution of its powers. No such presumption could be made concerning any party's knowledge of the fact that a previous mortgage had been made ; and there was no authority for hold- ing that trustees for a public purpose were in any particular state of protection on such a point.^ Estoppels of this kind will be resumed in the chapter on Corporations. In like manner, if a deed has been* executed in contravention of statute, the law of estoppel does not apply.* In the case first cited an ejectment was brought for certain lands charged with an annuity, by the grantee against the grantor. Nq registration of the deed had been made, and the plaintiff contended that none was necessary under the statute by reason of the fact that the de- fendant had covenanted that the premises were of more than suffi- cient value to pay the annuity. The defendant offered to prove the contrary, and thus to show that the deed should have been registered. The plaintiff contended that he was estopped by the deed ; but the court ruled otherwise.^ 1 It would seem from the conclading of equal annual value with the annuity, remark of the Chief Justice that he al- or greater. To establish that here, the together doubted the soundness of the defendant refers to a covenant by which, dictum. He said : * The dictum of as he says, it is stated that the lands are Ashhurst, J. is not adopted by either of of such value. But that is not sufficient the two judges sitting with him, whose for the pur})Ose. If it were held so, an concurrence in the general result might instrument which the parties might be wholly independent of this doctrine.' choose to prepare would defeat the stat- But the other judges did not express ute from beginning to end. They insert any dissent from the doctrine. a covenant that the land is of the re- * Doe d. Chandler v. Ford, 3 Ad. & quisite value ; they might equally well E. 649 ; Doe d. Preece t;. Howells, 2 put in a statement that the annuity was Bam. & Ad. 744 ; Merriam r. Boston given by marriage settlement, or with- R. Co., 117 Mass. 241. out regard to pecuniary consideration, • Mr. Justice Patteaon said : * I do and then contend that the grantor was not say whether in a different case this estopped.* See also to the proposition covenant would have been an estoppel that there is no estoppel if the deed be or not. But the question here arises on void, Doe d. Stevens v. Hays, 1 Ind. a statute which says that an annuity 247 ; Housatonic Bank v. Martin, 1 Met. deed, if no memorial is enrolled, shall 294, 807 ; Germond t;. People, 1 Hill, he void unless it falls under certain pro- 843 ; Jackson v. Brinckerhoff, 3 Johns, visions contained in the tenth section. Cas. 101 (conveyance of land in adverse To enforce the deed where there is no possession. But see Stockton v. Wil- memorial, the parties must show that it liams, 1 Doug. ( Mich. ) 546, holding comes within one of these provisions ; that such deed works an estoppel). in the present case, that the lands are 352 BSTOPPEL BY DUD. [CHAP. IZ. If, however, the deed is void only against one of two grantors and not against the other, as in the case of a deed of the wife's land by husband and wife with defective privy examination, the deed will be effectual as an estoppel on the grantor towards whom it was valid, though not in regard to the other.^ In like manner, a deed executed by an agent in excess of his authority in which the covenants embrace him as well as his principal will in respect of such covenants bind the agent by estoppel^ Indeed, the rule under consideration has no relation to convey- ancea of land by a grantor before he has acquired a title; a sub- ject to be considered later. If a deed be void in part only, and the rest be severable, estoppels may arise from the part which is good.' Of course a deed procured by firaud works no estoppel^ The effect of the estoppel further ia § 2. Limited to Questions directly concerning the Deed, The purpose for which a statement in the deed was made must always be considered, and its effect limited accordingly, however broad its language. Becitals are generally made for the purpose of indicating or of carrying into effect the general object of the deed, and not for collateral purposes ; ^ and hence the rule is that a recital is conclusive of the fiacts stated, only in an action of which the deed itself is the foundation or defence.' That this limitation prevails, preventing the estoppel from having a collateral effect, appears from many cases ; ^ and its ef- fect appears to be to put the estoppel on grounds of contract, a point already referred to.® In Carpenter v, Buller the plaintiff ^ Wellborn v, Finley, 7 Jod«s, 228 ; to the subject-matter of the conveyanoe. Chapman v. Abrahams, 61 Ala. 108. Fisher v. Mining Co., 97 N. Car.' 96 ; See Albany Ins. Co. v. Bay, 4 Comst. 9. 8. c 94 N. Car. 897. « Korth «. Henneherry, 44 Wis. 806. ^ Carpenter «. Buller, 8 Mecs. 4 W. » United States v. Hoidson, 10 WalL 209 ; Fraaer «. Pendlebury, 31 L. J. 895 ; Daniels v. Tearaey, 102 U. S. C. P. 1 ; s. c. 10 Weekly R. 104 ; 416, 420. Southoabtem Ry. Co. o. Warton, 6 * Hazard v. Irwin, 18 Pick. 95; Par- Hurl. & N. 520 ; Carter w. Carter, 3 tridge v. Messer, 14 Gray, 180. Kay & J. 617, 645 ; Young v, Bain- * See Weed Sewing Machine Co. ». cock, 7 C. B. 310 ; Stroughill ». Buck, Emerson, 115 Mass. 654. 14 Q. B. 781; Bank of America •. < Linney v. Wood, 66 Texas, 22, 28. Banks, 101 U. S. 240, 247. And of course the estoppel ia confined ^ A&te, p. 881, note. SECT. II.] LIMITATIONS OP THE DOCTRINE. 358 sued for a trespass alleged to have been committed on his close. The defendant pleaded title in himself, and introduced in evi- dence a deed m^de between the parties for a purpose collateral to the question of title, in which it was recited that the title to the pix>perty was in himself. Counsel for the plaintiff contended that the recital, though admissible in evidence, was not conclu- sive; and he proposed to show that the admission was made under a misapprehension. On the other hand, it was contendeci that the plaintiff was estopped by his admission in the recital, and that the evidence was therefore inadmissible. But the court ruled that the evidence was proper.^ The same principle prevailed in the case of Norris v. Norton.^ Tliis was an action of trespass de bonis asportatis in which it appeared that under an execution against a third person the plaintiff's property was levied on. The plaintiff claimed it, and proposed to try the right of property, but subsequently executed to the sheriff a delivery bond with the understanding that he should not be precluded thereby from asserting his title. The property was delivered and sold under protest by virtue of the execution, whereupon the plaintiff brought this action against the purchasers. The defendants now contended that the plain-, tiff was estopped by the recitals in the bond from maintaining the action. But the court ruled otherwise, declaring that the estoppel could not arise in a proceeding not founded upon the delivery bond or in vindication of any right based upon or growing out of it.* * In delivering judgment, Parke, B. So in Fraaer v, Pendlebnry, 81 L. J. C. P. said : ' All the instances given in 1, Williams, J. said : * It is clear from Comyns's Digest, Estoppel (A. 2), under Carpenter v. Buller that these estoppels the head of ** Estoppel by Matter of are only in form where the matter of Wilting," except one which relates to a the deed itself is in dispute, and not release, are cases of estoppel in actions where the dispute is about matters en- ou the instrument in which the adniis- tii-ely collateral to it.' sions are contained. By his contract in ^ 1 Ark. 319. the instrument itself a party is assured- * * No plausible reason has been of- ly bound, and must.fulfil it. But there fered,' said Mr. Justice Scott in deliv- is no authority to show that a party to ering judgment, ' to sustain the idea the instrument would be estopped in an that the appellee ought to be estopped by action tiy the other party not founded the recitals in the delivery bond under on the deed, and wholly collateral to it, the circumstances of this case, and we to dispute the facts so admitted, though can conceive of none ; and certainly the recitals would certainly be evidence.' none of the authorities cited to the 23 864 ESTOPPEL BY DEED. [CHAP. IX, When, however, the proceeding, though not upon the deed, grows out of it, it is not, as the court intimate in the case just referred to, collateral to the deed. The point is illustrated by Wiles V. Woodward,^ The case was trover for a quantity of paper, to which the defendant pleaded not guilty and not pos- sessed. It appeared that the plaintiff and the defendant had been in partnership together as papei^makers and iron-mer- chants, and that the partnership had been dissolved by deed, in which it was recited that an agreement had been made that the defendant should have all the stock in trade of the business in paper, but that the plaintiff should receive paper of a certain value out of the stock, to remain in the paper-mill for a year. On the other hand, the plaintiff was to have all tlie stock in trade in the iron branch of the business. The deed then recited that in pursuance of that arrangement paper of that value had been actually delivered to the plaintiff, and that it was then in the paper-mill. An assignment followed in the deed by the defendant to the plaintiff of all the stock in trade in the iron branch of the business, and by the plaintiff to the defendant of all the stock in the paper branch except that delivered to the plaintiff; and the partnership was dissolved. It appeared in fact that no paper had been delivered to the plaintiff; and it was contended that the plaintiff could not maintain an action of trover, as no certain definite quantity of paper belonged to him ; that as all the paper was assigned to the defendant except that delivered to the plaintiff, the whole was the defendant's ; and if not that it was still the joint property of both, and therefore no action of trover could be maintained by the plaintiff, being one joint tenant, against the defendant, who was another. The reply was that both parties were estopped by the deed to say that no point come np to the facts of this case, as an estoppel against the appellee. The If this proceeding was upon the delivery very instrument itself in which the bond, or was to vindicate or defend matter was contained has performed its some right predicated upon or growing office, and in legal contemplation does out of it, then most of them would be not exist at all unless as the root of in support of the objection urged. But something that has grown up from it' this is not the case here. The condi- See Syme v. Montague, 4 Hen. & M. tion of the defendants has been in no 180 ; Jemison v. Cozens, 8 Ala. 6S6. way superinduced or in any way affected ^ 5 Ex. 657. by the matter that they seek to set up SECT. II.] LIMITATIONS OF THE DOCTRINE. 855 such delivery had taken place ; and this too not merely in an action on the deed, but in the present proceeding to enforce the rights arising out of it, a proceeding which, it was urged, was not collateral to the deed. And of this opinion was the court. It is held, however, that a party to a joint deed cannot limit the effect of his deed by alleging that it only covers land held jointly by the grantors, and does not embrace land owned in severalty within the general limits mentioned in the deed.* The precise question in the case cited was whether, under a joint license by deed to make a canal through the land of the licens- ors, the licensees could be restricted to land held jointly by the parties, and whether one of the parties was barred from main- taining an action in respect of an injury to land owned in sev- eralty. The license was in these words : * We, the said Israel, Ebenezer, and David, do hereby give to said corporation full and entire permission, authority, and power to make, finish, and com- plete said crossdam, road, dike, and canals, and to keep up and maintain said dam, road, and dike, and to keep open and main- tain said canals forever.' The court held that the action could not be maintained. The deed, it was said, did not describe the grantors as tenants in common. The license made no reference to any particular land, but authorized the works generally. This necessarily precluded each party to the deed from claiming any damages consequent upon the act which they had authorized ; and it was to be taken to be their several as well as joint license. It would be absurd that a man who had joined with others in allowing an act to be done which might injure his own land as well as that which he owned in common should be allowed to say, 'It is true I permitted you to do the act, but I did not in- tend you should do injury by the act to my land, but only to that which I owned with others.' ^ 1 Fianda v. Boston & R. Mill Corp., to destroy both the privileges ; can the 4 Pick. 865. one of the three who had joined in the ^ ' Suppose the case,' the court oh- deed complain because the privilege served, ' of three men owning a mill which he held in severalty is destroyed ? privilege in common, and one of them Certainly not. The grant in such cases owning another privilege below on the must be taken distributively, so that same stream, and the three joined in a each grantor should be estopped from license or grant to stop the water above claiming any damages occasioned by the the first privilege, or to divert it so as act which he had permitted.' 856 ESTOPPEL BY DEED. [CHAP. IX, § 3. Grantee in Deed-Poll: In Indenture: Mutuality. In case the instrument be a deed-poll, that is, the deed of the grantor only, the doctrine that the parties to a sealed instru- ment cannot dispute its force and effect is subject to the further qualification that the estoppel applies in general only to the grantor, and does not reach the grantee.* The acceptance of a deed-poll, however, §ometimes works an estoppel upon the grantee in the case of admissions and covenants intended for him.^ Nor does this qualification to the rule extend at the present day to leases by deed-poll, as we shall see in Part III. A tenant is now estopped to deny his landlord's title in such cases as per- fectly as in leases by indenture ; though it was otherwise in the time of Coke.* A more important limitation of the rule concerning estoppels by deed is now to be presented and illustrated. No statement in the books is more common than the rule of Sir Edward Coke, that one who accepts an estate from another is estopped to deny the latter's title ; ^ and the contrary statement occurs almost as frequently. Leaving out of the question the relation (to which the rule properly applies) of subordinate tenure, such as that of landlord and tenant, and all similar relations, including cases of covenants or stipulations from a grantee to restore or surrender 1 Cooper V. Watson, 73 Ala. 252 ; tract of purchase deny the right of him Gardner v. Greene, 5 H. I. 104 ; Spar- under whom he enters, for he is quasi a row V, Kingman, 1 Comst. 242 ; Gi^eat tenant holding in virtue of his vendor's Falls Co. V. Worster, 16 N. H. 414, 450; title and by his permission. But the Winlock V. Hardy, 4 Litt. 272. In deed in question is an executed grant to Winlock 9. Hardy, just cited, Boyle, the defendant in fee simple, and he C. J. speaking for the court in regard to holds, not as tenant of the grantor, but a deed of this kind, said : ' It is not the in his own right and for his own benefit, deed of the defendant, but of Isham and his possession is adverse to his only, by whom alone it is executed ; gitmtor, as well as to the rest of the and not being the deed of the defendant world. He cannot, therefore, be under it cannot as a deed operate to estop him any greater obligation not to dispute his from denying that the grantor had title, grantor's title than he is not to dispute Nor can the deed create any relation be- the title of any other person.' tween the parties to it whereby the de- ^ Atlantic Dock Co. v, Leavitt, 54 fendant would be estopped. We know N. Y. 36 ; infra, p. 867. that a tenant cannot deny the title of ' Coke, Litt. 47 b. See Part III. his landlord, nor can a person who enters * Coke, Litt. 362 a. upon land in virtue of an «*xecutory con- SECT. III|] LIMITATIONS OF THE DOCTRINE. 857 possession on the termination of a life estate, and recitals de- claring a revei*sion to be in a grantor,^ we proceed to inquire of the tme doctrine respecting the power of a grantee holding free from all claims of the grantor to deny the title of the latter.* It is certain that a grantee cannot, while holding possession nnder his grantor, dispute his grantor's title for the purpose of escaping entii^ely the .payment of the purchase price of the property.* It is a well-established rule of equity that if a pur- chaser buys in a better title than that of his vendor, the latter being guilty of no fraud, he (the vendor) can be compelled to refund to the buyer only the sum paid for the better title* Nor can a grantee question the validity of his grantor's title at the time of his conveyance in a contest with another who claims under the same grantor, unless he claims under a paramount title which he has himself acquired or connected himself with. He cannot assert the existence of such paramount title, or allege any defect in his grantor's title, nor can he say that the convey- ance which he has accepted was made in fraud of his grantor's creditors, so long as he claims under that title alone.* Nor will a person be permitted to accept a deed with covenants of seisin and then turn round upon his grantor and allege that his cove- nants are broken by reason of the fact that he himself at the time he accepted the deed was seised of the premises.^ Nor will the grantee in a deed-poll, having accepted the deed and estate, be permitted to deny his covenants, or that the seal attached is his, in an action on the covenants.^ 1 Robertson v. Pickrell, 109 U. S. Seavey v. Eirkpatrick, Cooke, 211 ; 60S, 615 ; Atlantic Dock Co. v. Leavitt, Mitchel v, Barry, 4 Hayw. 136. 54N. Y. 35. Thefie relations are treated ^ Ante, p. 345; Ives v. Sawyer, 4 of in Part III. Dev. & B. 51 ; Den d. Worsley t?. John- > See ante, pp. 845-347. son, 5 Jones, 72 ; Ray v. Gardner, 82 « Robertson t». PickreU, 109 U. S. N. Car. 146 ; CaldweU v. Neely, 81 N. 608, 615 ; Peters v. Bowmsn, 98 U. S. Car. 114 ; Eetchum v. Schicketanz, 73 56; McConihe v. Fales, 107 N. Y. 404, Ind. 187 ; Rochell v. Benson, Meigs, 3; 408; York v. Allen, 80 N. Y. 104; Wilkins v. May, 3 Head. 173; Wobum Abbott V. Allen, 2 Johns. Ch. 520 ; v. Henshaw, 101 Mass. 193. Crumb v. Wright, 97 Mo. 13, 19 ; Mun- • Fitch v, Baldwin, 17 Johns. 161, ford V. Pearce, 70 Ala. 452 ; Small t;. 166 ; Beebe v. Swartwout, 3 Gilman, Reeves, 14 Ind. 163 ; Marsh v. Thomp- 162, 179 ; Famess v, Williams, 11 111. son, 102 Ind. 272, 275 ; Sebrell v. 229. Hughes, 72 Ind. 186. ^ Atlantic Dock Co. o. Leavitt, 54 ^ Bush V. Marshall, 6 How. 284; N. Y. 85. Bat though the grantee's 358 ESTOPPEL BY DEED. [CHAP. IX. With these exceptions a grantee is not estopped to deny the title of his grantor.^ Thus, a grantee of land conveyed by an deed is made in terms subject to all title. There is no estoppel where the liens of mortgages, the grantee is not occupant is not under an obligation ex- estopped to deny the validity of a mort- press or implied that he will at some gage. Purdy t;. Coar, 109 N. Y. 448. time or in some event surrender the ^ Cummiugs v. Powell, 97 Mo. 624, possession. The grantee in fee is under 536 ; Mattison V. Aussmuss, 50 Mo. 551; no such obligation. He does not re- Grosholz V. Newman, 21 Wall. 481 ; ceive the possession under any contract Merryman v. Bourne, 9 Wall. 592, 600; express or implied that he will ever Blight V. Rochester, 7 Wheat 585 ; give it up. He takes the land to hold Osterhout v. Shoemaker, 8 Hill, 513 ; for himself, and to dispose of it at Averill V. Wilson, 4 Barb. 180 ; Collins pleasure. He owes no faith or alle- v. Bartlett, 45 Cal. 871 ; Donahue v. giance to the grantor, and he does him Klassner, 22 Mich. 252; Sands v. Davis, no wrong when he treats him as an utter 40 Mich. 14. See Campau v. Campau, stranger to the title." [See also Wat- 37 Mich. 245. The subject was con- kins v. Holman, 16 Peters, 25, 54 ; sidered by the Supreme Court of New Society for Propagation of Gospel v. York in Averill v. Wilson, 4 Barb. 180. Pawlet, 4 Peters, 480, 506 ; Voorhies v. *lt in very evident,' said Mr. Justice White, 2 Marsh. 27 ; Winlock v. Hardy, Paige for the court, 'that no relation 4 Litt 272 ; ante, p. 357.] . . . Where of landlord and tenant, not even in a a grantor who has no title conveys with qualified form, exists between a grantor warranty, any estate subsequently ac- and grantee. If the vendor has actually quired by him will inure to the benefit executed a conveyance, his title is ex- of the grantee upon the principle of tinguished in law as well as in equity, avoiding circuity of action. The grantor The vendee acquires the property for cannot be said technically to be es- himself ; and he is under no obli^tlon topped by his deed from averring he to maintain the title of the vendor. He had no title when he conveyed ; but holds adversely to his grantor, and may the warranty interposes and rebuts and treat him as a stranger to the title, bars him and his heirs of a future right The property having become the prop- which was not in him at the time of the erty of the vendee by the sale, he has a conveyance. , • . . The grantor with right to fortify his title by the pur- warranty is not estopped by any recitals chase of any outstanding title which or allegations in his deeds, upon the may protect him in the quiet enjoy- strict principles of a technical estoppel, ment of the premises, (a) Chief Justice from asserting his title subsequently Marshall, in Blight's Lessee v. Roches- acquired. But it is his warranty which ter, 7 Wheat. 585, says that "no prin- rebuts and bars him of this newly ac- ciple of morality restrains him from quired title and passes it to his grantee, doing this ; nor is either the letter or or causes it to inure to his benefit. In spirit of the contract violated by it." fact, in the usual form of a covenant of In Osterhout v. Shoemaker, 3 Hill, 513, warranty there is no precise and direct Bronson, J. says : " Although a tenant assertion of a present title in the cannot question the right of his land- grantor nor a representation that he is lord, a grantee in fee may hold adversely the owner which could operate upon the to the grantor ; and there can be no grantee as an inducement to purchase good reason why he should not be at and part with his money. But the liberty to deny that the grantor had any grantee takes the warranty, and relies (a) This had been done in the present caae. SECT. UI.] LIMITATIONS OP THE DOCTRINE. 869 intestate with intent to defraud creditors is not estopped by taking under the deed and acting upon it to object, as one of the creditors of the estate, that the deed was fraudulent.^ And a grantee of land conveyed with warranty, who reconveys in mortgage with waiTanty to secure the purchase-money may show an outstanding title and an eviction thereunder. It has been so held by the Supreme Courts of Connecticut, Massachu- setts, and other states in actions by the grantee and mortgagor against the gmntor and mortgagee on the latter's covenants of seisin and against encumbrances.^ ■ The defendant cannot plead upon that as his indemnity agaiust any 830. This is not estoppel against estop- defects in the title. ... In this view pel, however; the grantee and mortgagor of the effect and operation of a deed might set up against the vendor an after- with warranty upon the rights of the acquired title, fiandall t*. Lower, supra; grantor there is nothing inconsistent in ante, p. 345. 'And it is now claimed,' the principle that a grantee in a war- said Williams, C J. speaking for the ranty deed is not estopped from contro- court in . Hubbard v. Norton, * that verting the title of his grantor. If as the last covenants preclude or estop is shown by the cases before cited no tlie plaintiff from a light of action on the relation of landlord and tenant exists others, because, it is said, they ai-e si- between a vendor and a vendee after a multaneous. Unless all principles of conveyance from the former to the lat- common sense are discarded, we must ter ; if the title of the vendee, although suppose that the deed of the defendants derived from, is adverse to the vendor ; conveying the land in fact preceded that if the vendee owes no faith or allegiance of the plaintiff, which was given to se- to the vendor ; if by the sale the title cure the consideration money for the of the vendor is extinguished, and the land so conveyed. There must, then, property becomes the property of the have been a seisin in the plaintiff under vendee, and he takes the land to hold and by virtue of the defendant's deed to for himself and to dispose of it at his him. ... If, then, we must consider pleasure, — the vendee does the vendor the plaintiff's deed as subsequent to no wrong by treating him as a stranger that of the defendants, it can be no es- to the title, by either controverting his toppel, because a warranty of title by title, or by buying in an outstanding the plaintiff in a subsequent deed will title, although the conveyance from the not prove that the defendants had title^ vendor to the vendee nuty have been when they conveyed to the plaintiff; with warranty.' for the plaintiff might at that time or ^ Norton v. Norton, 5 Cnsh. 524 ; immediately after have purchased in Green Bay Canal Co. v. Hewitt, 62 another title, or removed the encum- Wis. 816, 827. brance. The contrary is not so clearly ^ Hubbard v. Norton, 10 Conn. 422; implied as to become one of those pre- Sumner v, Barnard, 12 Met. 459 ; Ran- sumptions of law which cannot be re- dall V, Lower, 98 Ind. 255, 259 ; Con- butted. To create that legal certainty nor V. Eddy, 25 Mo. 72; Ijot v, requisite to constitute an estoppel the Thomas, 2 N. J. 407 ; Haynes v, Ste- defendants must show that the plaintiff vens, 11 N. H. 28 ; Hardy v. Nelson, 27 could have no other title than that Maine, 525 ; Brown v. Staples, 28 Maine, acquired by deed of the defendants. 497. See Gilman v. Haven, 11 Cush. It may be improbable, bat surely is not 860 ESTOPPEL BY DEED. [CHAP. IX. iu bar or rebutter of the action the plaintiffs covenant in the mortgage deed. In like manner, it is held that a recital of a prior conveyance in a deed under which a party holds will not estop him from claiming under a paramount title ; ^ and on the other hand, that one wlio accepts a conveyance reciting a prior lease or mortgage cannot impeach the title of the lessor or mortgagor on any ground that would have been open to his grantor, unless he can show that he has acquired a better title.^ § 4 Estoppd against Estoppd commonly sets the matter at large ; ' which is another limita- tion of the doctrine under consideration. And such a case occurs where the deed is encountered by another instrument of impossible. The fact that the plaintiff ' And this would seem to be all that had a title when he reconyeyed it to is meant by the broad declaration . . . the defendants is consistent with the that a man who accepts or acts under a fact that the defendants had not a per- deed cannot dispute the facts which it feet title when they conveyed to the recites.' 2 Smith's L. C. 712, 6th Am. plaintiff. Again, it is said, these facts ed., citing Chautauque Co. Bank v. Ris- form a good defence because the law ley, 4 Denio, 480 ; Denn r. Cornell, S abhors a circuity of action; and if the Johns. Gas. 174 ; Springstein v. Scher- plaintiff can recover of the defendants, merhorn, 12 Johns. 857; Funk v. New* they can also recover of the plaintiff, comer, 10 Md. 801, 816 ; Ward v, Mc- This objection presupposes what is not Intosh, 12 Ohio St. 231. See also upon admitted, that the plaintiff had not this subject Chiles v. Boothe, 3 Dana, procured a title when his deed was 567; Cutter v. Waddingham, 83 Mo. given or since that time. If the plain- 269 ; Lorain v. Hall, 38 Penn. St. 270 ; tiff had proved such a deed when he Walthall v. Rives, 84 Ala. 91 ; Wobum gave his, then the defendants could not «. Henshaw, 101 Mass. 193, holding that recover anything upon their covenants one in iKissession of a mill, located on a in the mortgage deed. If they have canal, and claiming title by a deed made since gained such title and removed by order of court binding him to keep such encumbrance, then only nominal the canal in repair, cannot esca])e from damages can be recovered ; and unless this liability on the ground that the or- the court can see that the same dam- der of court was defective, and that no ages must l>e recovered by the one party title was passed by the deed, as by the other, the suit will not be * Coke, Litt. 352 b ; 12 Hen. 7, p. barred for fear it will produce another.' 4 ; 6 Hen. 4, p. 7 ; Hoboken v. Prnn- 1 Baldwin v. Thompson, 15 Iowa, sylvania R. Co., 124 U. S. 656. 6r3 ; 504 ; Jackson r. Carver, 4 Peters, 1, Branson ». Wirth, 17 Wall. 32, 42 ; 83; Crane ». Morris, 6 Peters, 598, 611. Tibbets v. Shapleigh, 60 N, H. 487, 4: 1 ; « Addison v. Crow, 5 Dana, 271 ; Page v. Smith. 13 Oreg. 410, 413. The Coakley v. Perry, 3 Ohio St. 344 ; rule was applied to estoppel in pais in Ward V. Mcintosh, 12 Ohio St. 233. the last case. See ante, p. 332, note 6. SECT, v.] LIMITATIONS OP THE DOCTRINE. 861 equally high rank, inconsistent with the same, and made be- tween the same parties.^ *In this case,' said the court in Brown V, Staples, ' Winthrop Allen could maintain no action upon the covenants of the deed made to him by the demandant for a breach occasioned by his being deprived of the land by virtue of the mortgage made by Elliot Staples to John Welles, for he had by an obligation of as high a nature obliged himself to discharge that mortgage, and had thereby annulled the operation for such purpose of those covenants. It has been decided that a cove- nant of warranty would not include an encumbrance which the grantee had engaged to discharge/ ^ So too the assertion of an estoppel by deed may be prevented by the existence of an estoppel in pais against the use of the deed.^ But the fact that there exists between the parties another deed the terms of which are inconsistent with those of the one in suit, if that other deed be collateral to it and not in discharge or modification of it, will not suffice to remove the estoppel and open the matter to evidence.^ Thus,- in Lainson v, Tremere, just cited, an action was brought on a bond conditioned for the pay- ment of £170 yearly for the rent of certain premises; and the defendant attempted to show that the rent actually agreed upon was £140, and for this purpose offered in evidence the lease itself of the premises, which so recited the annual rental. But the court held the averment of the bond conclusive. Had the proceeding, however, been brought upon the lease for possession on the ground of non-payment of rent, the terms of the same would have been conclusive of the sum due ; and the recital of the bond would not have been admissible to set the matter at large. The estoppel of a deed becomes but prima facie evidence in collateral proceedings.^ § 5. No Estoppel if Truth appears. Another qualification is that if the truth plainly appears on the face of the deed, there is, generally speaking, no estop- ^ Brown v. Staples, 28 Maine, 497. ^ I^inson v, Tremere, 1 Ad. & E. See also Hoboken v. Pennsylvania R. 792. See Carpenter 9, BuUer, 8 Mees. Co., 124 U. S. 656, 698. & W. 209. < W^attB V. Welman, 2 N. H. 468. ^ Carpenter v. Bailer, sapra ; ante, > Piatt V. Squire, 12 Met. 494. pp. 352, 858. 362 ESTOPPEL BY DEED. [CHAP. IX. pel.^ And this simply means that all parts of the deed are to be construed together; and that if an allegation in the deed which alone would work an estoppel upon the parties is ex- plained in another part of the deed, or perhaps in another deed to wliich reference is made for the purpose, there is ordinarily no estoppel^ In Montgomery's Case^ it appeared that King Edward VI., being patron of a church held by an incumbent, by his lettei-s- patent granted the advowson to the Bishop of L and bis suc- cessors ; and further by the said letters-patent granted that after the avoidance of the church by death, resignation, or otherwise, the said bishop and his successors should hold the church to their own use. Afterwards the bishop made a lease of the par- sonage for sixty years to commence at such time as the parson- age should come to the hands of the bishop or his successoi's by the death, resignation, or other act of the incumbent; which lease was confirmed by the dean and chapter. The bishop died ; the incumbent then died ; and the bishop's successor entered and made a lease for twenty-one years to Montgomery, thus ignoring the previous demise. It was resolved by all the judges that the first lease was void because the lessor had nothing in the parsonage during the life of the incumbent who survived the bishop. And the nature of the' bishop's interest appearing on the face of the lease, neither he nor his successor could be estopped by it.* In Pargeter v. Harris,* an action for breach of covenant in a lease, the declaration stated purposely so much of the lease, said the Lord Chief Justice, as showed that the plaintiffs had only the equity of redemption in the premises, and that the defendant knew that circumstance from the recitals in the lease. The recital was thus of itself sufficient to prevent either party being estopped from denying that the plaintiffs had a legal 1 Coke, lAtt 852 b ; Par^geter v. v, Sinclair, 8 Cowen, 543, 586 ; Hannon Harris, 7 Q. B. 708 ; Cathbertson v. v. Christopher, 84 N. J. Eq. 459, 465. Irving, 4 Hurl. & N. 742 ; 8. c. 6 Hurl. ^ Hannon v, Chriatopher, 84 N. J. & N. 135 ; Morton v. Woods, L. R. 8 £q. 459. Q. B. 658 ; 8. c. 4 Q. B. 298 ; Wheelock « Dyer, 244 a. V. Henshaw, 19 Pick. 341 ; Pellatreau v. « See Coke, Litt 852 b. Jackson, 11 Wend. 110, 118 ; Jackson ^ 7 Q. B. 708. SECT, y.] UMITATIONS OF THE DOCTRINE. 863 revei-sion ; in ti*uth, it estopped them from asserting it So too it is held that if an ejectment be brought upon a lease which shows upon its face that the lessor has no legal reversion, there will be no estoppel on the tenant.^ The ground of the cases is suggested to be that the covenant must be enforceable as an obligation at law, and ejectment also requires a legal estate in the plaintiff.^ The lease negatives the existence of this in the lessor.* In the case of an action to try the validity of a distress, where this technical ground does not exist, the estoppel upon the tenant is not obviated by the lease showing the want of a legal title in the lessor * For the recovery of rent in such cases it would seem necessary to sue for use and occupation instead of in covenant (if that does require a legal estate), or to file a bill in equity.^ The distinction if real is a nice one ; and cases like Pargeter v. Harris and Saunders v. Merryweather now stand on narrow ground.^ If, however, the fact that the lessor's estate is only equitable does not appear in the lease but in another deed, as in an assignment of the lessor's interest, the fact cannot in any case be taken advantage of by the lessee, even in an action of covenant by the assignee.^ 1 Saunders r. Meiryweather, 8 Hurl. ' whether the appearance of the truth & C. 902. on the face of the instrument will defeat ' Morton v. Woods, L. B. 4 Q. B. an estoppel or not must altogether de- 298, 303, in Ex. Oh. pend upon the fact whether it is so ex- * Of course if the deed did not show pressed that it can be readily seen and the want of a reversion, the lessee would understood by the person who ought be estopped to allege the fact as well in to be influenced by it, or in manner ejectment as in an action for rent or for so technical or obscure that although trying the validity of a distress. it must be admitted it appears in the * Morton v. Woods, supra ; Jolly r. instrument, yet it is certain it was not Arbuthnot, 4 De G. & J. 224 ; Tilyou v, seen or understood by the person who Reynolds, 108 N. Y. 558, 563. should have been influenced by it, but * Jolly V. Arbuthnot, 4 De G. & J. that he dealt with the party sought 224 ; 8. c. 28 L. J. Ch. 547 ; Morton v. to be estopped as though the words Woods, supra. on which the estoppel is founded ex- * ' But even if any of the decisions pressed the whole truth.' or dicta were to lead to the conclusion ^ Gouldsworth v. Knights, 11 Mees. that when the truth appears [in such & W. 887, 843, explaining Whitton v, cases] there can be no estoppel, that Peacock, 2 Scott, 630 ; s. c. 2 Bing. doctrine must be taken to be overruled N. C. 411 ; Cuthbertson v, Irving, 4 by the case of Jolly v. Arbuthnot.' Hurl. & N. 742 ; s. c. in error, 6 Hurl. Kelly, C. B. in Morton v. Woods. See & N. 185. In delivering judgment in also Hannon v. Christopher, 34 N. J: the Exchequer Chamber in the last- £q. 459, 466. It is there said that named case, Wightman, J. said : ' The 864 ESTOPPEL BY DEED, [CHAP. IX. lessor in this case, being a mortgagor in peared upon the evidence that the les- possession at the time of the granting aor had no legal estate or interest of the lease, had no legal title to the whatever in the premises, but only an premises, but only an equity of redemp- equity of redemption, the question is tion. His title, therefore, as between how ought the issue upon the traverse him and his lessee is only by estoppel, to be found f The answer is for the aud if the lessor assign, as he can only plaintiff, because the lessee is estopped assign that which he had. Ids assignee from denying that the plaintiff had will either have a title by estoppel as such* a legcU estate as would warrant against the lessee, or no title at ^11. In the lease ; and as no other legal estate this case if the plaintiff had declared in or interest is shown to have been in the old form, he would have stated the the lessor it must be taken as against lessor to have been seised in fee, which the lessee by estoppel that the lessor according to the cases might have been had an estate in fee.' traversed ; and if it had and it had ap> CHAP. X.] BECITALS. 865 CHAPTER X. BECITALS. A RECITAL in a sealed instniment is defined to be the prelimi- nary statement of such deeds, agreements, or matters of fact as are necessary to explain the reasons upon which the transac- tion is founded.^ A formal recital is generally contained in the premises of the deed, and usually begins with the word ' whereas,' which, when there are several recitals in connection, is repeated accordingly, — ' and whereas/ ^ However, we shall see that recitals are also introduced in other ways, and that the term is extended to other parts of the deed than the preliminary statement of the inducement and purpose; indeed, that the term, or at least the rule applicable to the term, is applied to all dis- tinct, material statements of fact within the instrument. There are two kinds of recital, particular and general. The former are conclusive evidence of the matters stated, if the deed is valid,* in actions concerning the xiirect purpose of the deed * If the deed is collateral to the purposes of the action, the recital, however specific, is but prima facie evidence, as we have seen;* 1 2 Black. Com. 298. v. Heme Bay Com., L. B. 5 Q. B. 642 ■ 2 Burrill, Law Diet 'RecitaL' Green's Appeal, 97 Penn. St. 342 ; Bed- • Not if it is void. Conant v. New- wood v. Tower, 28 Minn. 46. It is ton, 126 Mass. 105. Becital cannot es- held that a grantee is not estopped by top one to allege non est factum. Manuf. a recital in his deed which declares the Co. V. Elizabeth, 42 N. J. 249 ; Hudson premises subject to an encumbrance V. Winslow, 6 Vroom, 437. from showing that the encumbrance * Baltimore B. Co. v. Vanderwarker, had no existence in fact. Goodman v. 19 W. Va. 265 ; Usina v. Wilder, 58 Bandall, 44 Conn. 821. Nor is one es- Ga. 178 ; Lucas v. Beebe, 88 lU. 427 ; topped by recitals of a person under Pinckard v. Milmine, 76 lU. 463 ; Mix whom one does not claim. Graves v, V, People, 86 111. 329 ; George v. Bis- Colwell, 90 lU. 612. choff, 68 111. 236 ; Insurance Co. v. ^ Carpenter v. Buller, 8 Mees. & W. Bnice, 106 U. S. 828 ; School District 209 ; McCullough v. Dashiell, 78 Va. 17. Stone, 106 U. S. 183 ; In re Rom- 634, 648 ; ante, p. 852. ford Canal Co., 24 Ch. D. 85 ; Webb 866 ESTOPPEL BY DEED. [CHAP. X. though it would perhaps be conclusive if the statement appears to have been made for the pui-pose of fortifying or establishing the title or claim in question in the litigation. With the inten- tion acconlplished, the recital loses force.^ General recitals, on the other hand, do not operate to estop the parties from ad- ducing contrary evidence, for certainty is of the essence of an estoppel.^ The effect of a recital by deed in the law of estoppel has in the past been considered to be due to the fact that it was made in a deed ; and it is not clear that the same words in a sealed instrument would work an estoppel in those states in which the effect of a seal has been taken away by statute. It seems more likely that in such states the recited facts would not bind by way of estoppel unless the parties appear to have contracted for their truth or to have made the validity of the contract in which they are contained dependent upon the same. We propose now to consider as at common law each of the classes of recital above mentioned. § 1. Particular Recitals, Particular recitals appear to be declarations such as would be evidence by way of admission * or otherwise of some fact in dis- pute. At any rate, to work' an estoppel a recital should clearly and beyond doubt affirm or deny some present or past fact or admit some liability definitely stated.* Such a recital was be- ^ McCuUough V. Dashiell, 78 Va. when it is of the essence of the instra- 684, 648. ment, and that has been accepted and ' Jackson v. Allen, 120 Mass. 64, 79 ; acted on as valid and binding ; as where School District v. Stone, 106 U. S. 183 ; a deed executed upon a proper occasion Lainson v. Tremere, 1 Ad. & E. 792 ; is dated back to give it effect See Strowd V. Willis, Croke, Eliz. 762 ; Kellcy v. State, 26 Ohio St 667. So Shelley v, Wright, Willes, 9 ; Salter v. of a bond executed in fact on Sunday Kidley, 1 Show. 69 ; Right v. Bucknell, but dated otherwise, and then falling 2 Bam. & Ad. 278 ; Kepp v, Wiggett, for value into the hands of an innocent 10 C. B. 36 ; 2 Smith's L. C. 762, 6th party. Eng. ed. * Calkins t;. Copley, 29 Minn. 471 ; * Sutton V. Casselleggi, 6 Mo. App. School District v. Stone, 106 U. S. 183 ; 111. See Carrigan v. Bozeman, 13 Zimmler v, San Louis Water Co., 67 S. Car. 376. The date of a sealed in- Cal. 221 (that the recital should be ' so strument, though commonly but prima certain as to admit of no other constnic- facie evidence, may become conclusive tion than that set up '}. If founded on SECT. I.] RECITALS. 867 fore the Queen's Bench in Lainson v. Tremere.* The action was upon a bond the condition of which declared by way of recital that by indenture of lease between the plaintiff's testator an«l the defendant the testator demised premises to the defendant at the yearly rent of £170. The defendant pleaded that the lease in the condition mentioned was a lease the reddendum of which was £140 only, and that that sum had always been paid. The whole lease was set out, by which it appeared that the rent was at £140 per year. But the court held the defendant to be estopped.* mistake no estoppel will arise, at least bond cannot be enforced against him. in equity. Brooke v. Haymes, L. R. 6 But notwithstlinding the argument, we £q. 25. think, as far as the bond goes in a court ^ 1 Ad. & E. 792. of law, the obligor is estopped from * Lord Denman, who delivered the saying that the rent was not £170 a judgment, said that the authorities were year, because his showing the lease at clear that if there was a condition to a rent of £140 is in effect the same perform the covenants of an inden- thing as saying that there is no such ture, the obligor was estopped to deny lease as is stated in the bond. In 1 the existence of the indenture ; or in Rolle's Abridgment, 873 b. Estoppel, general, when the condition of a bond (P), pi. 10, 11, there is a case of Fletcher has reference to any particular thing, v. Farrer, as foUows : '* If the condition the obligor is estopped to say that there of an obligation be to do certain things is no such thing. 1 Rolle*s Abridg- for which the obligor is bound in a cer- ment, 872 b. He proceeded thus : tain recognizance showing the certainty ' The whole lease being set out, the of it, then the obligor shall be estopped defendant contends that the actual to plead that he was not bound in any lease is to be taken as a further de- recognizance inasmuch as the condition scription of the lease recited in the has reference to a particular. So the condition of the bond, accoifling to obligor in the case aforesaid shall be what is said by Holt, G. J. in Evans v. estopped to plead a special plea by Powel, Comb. 377 ; and that the bond which he owns that he acknowledged and lease are to be taken as together a thing in the nature of a recognizance, forming one instrument. And as it but upon the special matter it appears appears by the lease that the rent is to the court it was not any recogni* £140 a year, the defendant says,, as it zance in law ; for this amounts but to is the lease which contains the real this, that he was not bound in any contract of the parties, and the rent recognizance." Upon what appears on being to be paid for the occupation of the record there is no doubt but if an the land, that if he has paid the .rent action of covenant had been brought on stipulated, he has performed the con- the lease, only £140 could be recovered ; tract specified in the lease, and it is and there certainly is an apparent in- therefore an answer to the action ; that congruity in saying that different sums the bond does not show the contract as are to be recovered according as the to the rent, but is merely given as a proceeding is on the bond or the lease, collateral security for the performance This, however, is occasioned by the de- of the terms of the lease ; and if he has fendant having executed twp apparently performed the terms of the lease, the inconsistent instruments.' 368 ESTOPPEL BY DEED. [CHAP. X. Ill a subsequent case ^ a declaratdou in covenant stated that by indenture, after reciting that the plaintiff bad invented cer- tain improvements in the construction of looms, and had obtained letters-patent for the sole use of the invention, and that he had agreed with the defendants to permit them to use the invention, the plaintiff covenanted to permit the defendants to use it ; in consideration of which the defendants agreed to pay a certain sum. The declaration then alleged a breach of performance by the defendants. The latter pleaded that the invention ^as not a new one, and that the plaintiff was not the first or true in- ventor of the improvements. It was contended on the part of the plaintiff that the defendants were estopped from pleading the pleas mentioned ; while counsel for the defendant contended that the pleas were consistent with the deed. The court de- cided that the pleas were bad, directly affirming the doctrine of Lainson t?. Tremere, above presented.* 1 Bowman v. Taylor, 2 Ad. & £. 278. been truly said in the deed that the ^ Taunton, J. said : 'The law of es- plaintiff "had invented" the improve- toppel is not so unjust or absurd as it ments, in the sense in which the deed has been too much the custom to repre- uses the words. Then the plea directly sent. The principle is that where a negatives the deed, and comes within roan has entered into a solemn engage- the rule that a party shall not deny ment by deed under his hand and seal what he has asserted by his solemn in- as to certain facts, he shall not be per- strum«nt under hand and seal.' The mitted to deny any matter which he same judge thus distinguished the case has so asserted. The question here is from Hayne v. Maltby, 3 T. R. 438 : whether there is a matter so asserted by ' Here there is an express averment in the defendant under his hand and seal the deed that the plaintiff is the in- that he shall, not be permitted to deny ventor of the improvements ; there the it in pleading. It is said that the alle- articles of agreement averred nothing gation in the deed is made by way of as to the originality of the invention, recital ; but I do not see that a state- but merely stated that the plaintiffs ment such as this is the less positive be- were the assignees of the patent, which cause it is introduced by a *' whereas." they might have been though the as- Then the defendant has pleaded that signor was not the original inventor.* the supposed invention in the declara- Mr. Justice Patteson said : ' The only tion and letters-patent mentioned was authority cited for the proposition that not nor is a new invention. These no estoppel can be by recital is that words, " was not nor is a new inven- from Co. Litt. 852 b. It is not denied, tion," must be understood in the same however, that there have been many sense as the words ''had invented," in cases in which matter of record has the reckal of the deed set out in the been held to estop ; but then it is said declaration, and must refer to the time that the recital in those cases has been of granting the patent ; and if the in- inseparably mixed with the operative vention could not then be termed a new parts of the deed. . Bat if that be a test, invention, it could not, I think, have the case ia so here. The deed recites SECT. I.] RECITALS. 869 Where a recital is intended to be an agreement of both parties to admit a fact, it estops both parties ; but it may be a question . whether the recital is so intended. If a proper construction of the recital, or other lawful evidence, shows that but one of the parties agreed to admit the fact, the other party will not be estopped by it* Stroughill v. Buck, just dted, was such a case. It was an action on a deed of indenture between the plaintiff and the defendant, which recited that the defendant had ad- vanced money to one Ogle on the security of certain deeds, and that the defendant was interested in those deeds to that extent ; that it had been agreed that the plaintiff should make further advances to Ogle; and that the defendant should assign the deeds and his interest therein to the plaintiff as security. The that the plaintiff has invented improve- first of these pleas in effect states that ments and obtained a patent for the the money was not borrowed for the invention ; and then it proceeds to a purposes of the acts ; but I think that demise of the very subject-matter for the defendants are estopped from set- which the patent is granted. I cannot ting up any such defence. It has been separate these things; and I therefore argued that the doctrine of estoppel think the recital here comes within the does not apply here ; but the ca.se of description which Mr. Wightman has Hill v. The Proprietors of the Man- given of the law laid down by the old Chester Water Works, 2 Bam. & Ad. cases. The passage in Lord Coke must 544, satisfies me that it does. The be taken with some little qualification ; meaning of estoppel is this, that the and Lainson v. Tremere, 1 Ad. k £. parties agree for the purpose of a par- 792 [supra], is a direct authority to ticular transaction to state certain facts show that there may be an estoppel by as true, and that so far as regards that way of recital.' The doctrine of these transaction there shall be no question cases has been held in several other about them. But the whole matter is English decisions. Horton v. West- opened when the statement is made for minster Commissioners, 7 Ex. 780 ; HiU the purpose of concealing an illegal con- V. Manchester & S. W. W. Co., 2 Bam. tract ; for persons cannot be allowed to & Ad. 544 ; Shelley v. Wright, Willes, 9. escape from the law by making a false In Horton v, Westminster Commission- statement. That is totally different era Martin, B. said: *This is an action from this case; for here the contract upon an instrament under seal whereby itself is perfectly legal, and though the the defendants have contracted to do plea is not the same, yet the case is certain acts ; and in order to excuse substantially the same as that of HiU themselves from performing them they «. The Proprietors of the Manchester ought to make out a clear legal defence. Water Works, which in my judgment Now, the instrament itself states [by is good sense and good law.' recital] that the defendants were author- ^ Stroughill v. Buck, 14 Q. B. 781 ; ized to borrow money for the purposes Young v. Raincock, 7 C. B. 810; Bower of the acts ; and that in pursuance of 9. McCormick, 28 Gratt. 810; Blackball the acts they had borrowed the money v. Gibson, 2 L. R. Ir. 49. for which this bond was given. The 24 870 ESTOPPEL BY DEED. [CHAP X. defendant assigned them to the plaintiff, and covenanted that the money bo advanced by him (the defendant) was due to him and unsatisfied. The action was for a breach of this covenant, the plaintiff alleging that the money was not due when the covenant was made. The question finally arose upon demurrer whether the plaintiff was estopped by the recital to allege that the money was not due. The court by Mr. Justice Patteson held that he was not. The plaintiff might deny that the de- fendant had made advances ; for as this fact was material for the validity to the plaintiff of the securities on which he had advanced the money, and as he had taken the covenant to secure to him the truth of this fact, the true construction of the recital was that it was intended to be the statement of the defendant only. If the parties to a deed bound the land conveyed upon a street, they are in an action concerning the boundary of the land estopped to deny the existence of the street.^ In the case first cited a question arose upon the construction of a deed from R to T, in which the former conveyed to the latter a piece of land in New Bedford, bounding it southwardly And westwardly on a way or street. Chief Justice Parker said that by this description the grantor and his heirs were estopped from deny- ing that there was a street or way to the extent of the land on those two sides. This was not merely a description, but an implied covenant that there were such streets. It probably entered much into the consideration of the purchase that the lot fronted upon two ways which would always be kept open, and, indeed, could never be shut without a right to damages in the grantee or his assigns.^ And recently it has been decided by the same court, but certainly upon a questionable view of 1 Parker v. Smith, 17 Mass. 413 ; Refinery, 109 Mass. 292 ; Morgan v. Donohoo v. Murray, 62 Wis. 100, 103 ; Moore, 8 Gray, 319 ; Lunt v. Holland, Bartlett V. Bangor, 67 Maine, 460 ; Bell 14 Mass. 149; Davis v. Rainsford, 17 V. Todd, 61 Mich. 21, 26; White v. Mass. 207; Parker ». Bennett, 11 Allen, Smith, 37 Mich. 291 ; Smith u. Lock, 888 ; Murdock v. Chapman, 9 Gray, 18 Mich. 66. So too where the land is 166; Sheen v. Stothert, 29 La. An. bounded on a private w^y not defined 630. in the deed, but shown on a plan re- ' See O'Linda v. Lothrop, 21 Pick, ferred to therein and recorded in the 292 ; Tufts o. Charlestown, 2 Gray, registry of deeds. Fox v. Union Sugar 271 ; Loring r. Otis, 7 Gray, 668. SECT. I.] ■ RECITALB. 871 the law of estoppel, that this estoppel is available as well by the municipality in which the street is located as by the parties to the deed.^ But a description of land bounded on a street named does not amount to a covenant oS the existence of a street of the width of the one named if it has since been closed, but only that there shall be a way of reasonable width.* The recent case of Freeman v. Auld ® involved the same prin- ciple. Premises had been conveyed to the defendant * subject to certain mortgages now a lien on said premises : one made to the Home Insurance Company, to secure the sum of 84,000, with interest ; and the other made to Ira A. Allen, to secure the sum of $1,000.' The court said that the defendant, by receiving his conveyance on these terms, had conclusively admitted the lien of the mortgages. If the conveyance had contained the further words, 'which the said grantee hereby assumes and promises to pay,' this would have caused a personal liability on the part of the defendant to pay the mortgages;* but it would have had no greater effect of subjecting the premises than was imposed by the clause as it stood.^ 1 Tobey v. Taanton, 119 Maas. 404. ported the jary mnst find), then the The evidence taken altogether, includ- deed amounted to an implied covenant, ing monuments as weU as the admiasion and a grant, if the grantor owned it, in the recital, made in this case a very that the grantee should have a right strong chain, such as a jury would not to a convenient street and passage-way. be apt to break ; but we would venture There would be nothing in that case to to doubt if either upon the distinction designate or limit the dimensions of the taken by the court or upon any other way thus granted by implication ; but the recital or the whole evidence it must be presumed that some way amounted to an estoppel in favor of was intended for the purposes of pass- a stranger. ing, indicated by the use of the word « Walker v. Worcester, 6 Gray, 648. "street"' In the case cited the plaintiff claimed ' 44 N. Y. 50. to be entitled by the terms of a deed to * Lawrence v. Fox, 20 N. T. 268 ; a street on his westerly boundary, sixty Ricard v. Sanderson, 41 K. Y. 179. feet wide. 'The words of the deed, But as to this distinction see Birke "westerly on Park Street/" said the v. Abbot, 1 Northeastern Rep. 485; court, 'would seem to imply that there 2 Story's Equity, p. 341, note, 13th was a street there of that name. ... ed. If it had been once opened as a street ^ Parkinson v. Sherman, 74 N. Y. by a former proprietor, but afterwards 88 ; Green v, Kemp, 13 Mass. 515 ; a laige tract of land, including the Housatonic Bank v, Martin, 1 Met street, had been sold as one parcel and 294, 807 ; Johnson v. Thompson, 129 the street closed up before any house- Mass. 898 ; Tnite o. Stevens, 98 Mass. lots were sold (as on the evidence re- 805 ; Howard v. Chase, 104 Mass. 249 ; 872 ESTOPPEL BT DEED. [CHAP. Z. In Cutler v. Bower,^ agaiD, an action was brought upon a cov- enant to pay the sum of £2,200 by instalments in an indenture. The deed recited the grant of letters-patent to the plaintiff in 1841 for a certain invention, and also recited a deed datod July 23, 1842, by which the plaintiff granted the defendant the sole use of the patent subject to the payment of a certain royalty. The deed then recited that the defendant had agreed with the plaintiff for the absolute purchase of a half-interest in the patent subject to the indenture last mentioned, but with the benefit of one half of the royalty thereby reserved. It was then recited that in consideration of £2,200 for the purchase of half the patent and half the royalty, the plaintiff assigned and trans- ferred the patent to a trustee for the defendant The defence pleaded was that the plaintiff was not the first inventor, and that the patent was void. The court said that as there had been no eviction, the consideration had not wholly failed. The defendant was at all events bound by the indenture of July 23 to the royalty therein named, whether the patent was valid or not, as he would be estopped from denying the validity of the patent in an action upon that deed ; and by the deed upon which the action had been brought he was entitled to half the royalty. A similar question was raised in Hills v. Laming.^ The action was covenant to recover a certain sum stipulated to be paid as liquidated damages for the breach of a covenant con- cerning the use of certain patents. It appeared that there had been a dispute between the parties about their rights under cer- tain patents, which was finally adjusted by their entering into an agreement under seal, reciting that a certain patent had been granted to the defendant, and a certain other patent had been granted to the plaintiff, and that, to put an end to their differ- ences respecting them, the parties covenanted that the defendant should have the exclusive use of the patent" granted to the plaintiff under certain limitations, and that the plaintiff should have the exclusive use of the patent granted to the defendant Smith V. Graham, 34 Mich. 302 ; Com- Thompson, 6 Cow. 178 ; Lee o. Clark, stock V, Smith, 26 Mich. 806 ; Ken- 1 Hill, 56. nedy v. Brown, 61 Ala. 296 ; Bunkley ^ 11 Q. B. 978. V. Lynde^ 47 Ala. 211 ; Jackson v. * 9 Ex. 256. SECT. I.] RECITALS. 873 under similar limitations. The defendant pleaded to the action that the plaintiff's patents were not valid, that the inventions were not new, and that the plaintiff was not the first inventor. On demurrer the court held the plea bad, distinguishing the case from Hayne v, Maltby.^ The sureties in an administration bond, or a guardian bond, or the like are estopped by its recitals to deny that their princi- pal had been duly appointed to the office in question.^ So in the case of the bond of deputies given to the sheriff, if the bond recites that the parties signing were deputies, they will not be permitted to deny the allegation.^ So also if the bond recites or stipulates that all the signers are principals, none of them can say against the obligee that he was a surety,^ except — and the excep- tion is probably confined to the case of a recital as distinguished from an express stipulation — upon showing that the obligee, at the time of the act done by him in prejudice, as alleged, of the supposed surety's rights, knew that that party was a surety.^ It has also been held in a suit upon a replevin bond that the obligors will not be permitted to deny that the property was that of the defendant in the attachment where the bond recited that the property had been * attached as' his; ^ but a contrary doctrine has also been held with much apparent soundness, so far as the question turns alone upon the recitaL^ However, it ^ 8 T. B. 488. 18 Iowa, 515 ; liehman v. Warner, 61 * Cutler V. Dickinson, 8 Pick. 886 ; Ala. 455 ; poet, chapter 16. Bruce v. United States, 17 How. 437 ; ^ Menaugh v. Chandler, 89 Ind. 194. Shroyer v, Richmond, 16 Ohio St 455 ; * This appears to be the effect of the Norris «. State, 22 Ark. 524 ; William- better authorities, for there is want of son V. Woodman, 73 Maine, 163; Jones harmony in the cases. See 1 Parsons, V. Gallatin,. 78 Ky. 491; State v. Mills, Notes and Bills, 233, 234, where the 82 Ind. 126. See also Father Matthew cases are reviewed. The rule above Soc. V, FitzwiUiams,. 84 Mo. 406 ; Teu- stated would be accepted everywhere in tonia Bank v, Wagner, 33 La. An. equity, and it is apprehended that it is 732. ' the true rule at law as well. * Cox V. Thon^as, 9 Oratt 812; Cecil « Bursley v, Hamilton, 15 Pick. 40. V. Early, 10 Gratt. 198. Nor will a ^ Decherd v. Blanton. 3 Sneed, 873. surety be permitted to say that his But the question does not, it seems, principal was dead at the time the in- turn alone upon the recitaL The officer strument was executed. Collins v, Mitch- has been induced to deliver the property ell, 5 Fla. 364. So too the execution to the obligors upon the assurance that of a mortgage to a corporation estops the they make no claim to it, so that there mortgagor to dispute the existence of arises an estoppel in pais. See Dezell the corporation. Franklin v. Twogood, v. Odell, 3 Hill, 215 ; Dewey v. Field, 374 ESTOPPEL BY DEED. [CHAP. X. is certain that if the recital is specific (as when it alleges that a writ was issued against the goods, chattels, lands, and tenement of the defendant, and a certain piece of property was levied upon by virtue of the writ), the obligor cannot deny that the property belonged to the defendant in the attachment^ unless before forfeiture he surrendered the property in accordance with the terms of the bond.^ In like manner, where a deed described land as the premises on which the grantor resided, the parties were held estopped to deny that the premises were the homestead of the grantor.' So of a recital that land was formerly owned by A B> And a recital in a chattel mortgage that the property mortgaged is per- sonal estops the mortgagor to say it is real property, whatever the fact may be.^ So too a widow, by executing a i-elease in which she styles herself widow and sole devisee, is estopped to deny that she has elected to take under her husband s will.^ And a deed which recites that the defendant has bargained, sold, and delivered certain property, estops him to dispute the delivery.'' On the other hand, land may be excepted from a conveyance by recital of definite description, or by clear refer- ence to some instrument containiug a definite description of it' However, a particular and definite recital may be shown to refer to either of two subjects when intended to refer to but one, and if it cannot be shown which was intended, the estoppel must fail.^ So where several particulars are set out in a de- scription of land, some of which are found to be inapplicable to the premises, these may be rejected and the other unambiguous and correct statements relied upon as fixing the rights of the 4 Met. 881 ; Home v. Cole, 51 N. H. * WilliRms v. Swetland, 10 Iowa, 61. 287; Dresbach v, Miunis, 45 Cal. 228; * Stevenson v. Saline Co., 65 Ho. post, chapter 18. 425. 1 Gray v. MacLean, 17 111. 404 ; Mi- « Ballou v. Jones, 87 111. 95. chell V. Ingram, 88 Ala. 895 ; Dezell v, * Dundas v. Hitchcock, 12 How. Odell, 8 Hill, 215 ; Dreshach v. Minnis, 256. 45 Cal. 223 ; Dewey v. Field, 4 Met f Nevett v. Berry, 5 Cranch C. C. 881; post, chapter 18. 291. 3 Page V. Butler, 15 Mo. 73. See * McDonald r. Lusk, 9 Lea, 654. also Sponenhaiger v. Lemert, 23 Kan. * This is apon the principle, of oounn, 55; Haxtan v, Sizer, ib. 310; Staples of introducing eyidenoe to show a latent V. Fillmore, 48 Conn. 510 ; Tniehlood ambigiiity in a writing. V, Knox, 78 Ind. 810. SECT. I.] BECITAL8. 875 parties.^ But a party is not estopped by a recital in his deed, or in a deed of an earlier grantor of the premises, that the title was derived in a particular way unless it appears that he claims under that title.^ It appears from several of the foregoing cases that there may be an estoppel by recital of a conclusion of law, as in the case of Hills V. Laming, where the defendant was held estopped to deny the validity of certain patents by reason of the recitals of a deed executed between him ^and the plaintiff.' And there is good reason for such a doctrine. It is a settled principle of the law of contracts that the compromise of a claim doubtful in law is binding, affording a suf&cient consideration for a promise to pay money .^ Hence the recitals of the deed, though admitting the validity of acts or instruments which in law were invalid, will preclude the parties in an action upon the deed from con- testing the same.^ So too in the absence of fraud or mistake a recital by deed of the existence of a judgment is a recital of the validity of the judgment ; ^ for parties may agree to a re- cital which they know is not correct and bind themselves accordingly.^ It is held that where a party makes a deed confirming a for- mer one to which he was not a party, he does not thereby adopt the recitals of the former deed so as to be concluded by them, 1 Doane v. Willcutt, 16 Gray, 368 ; v. Pierce, 47 N. H. 309. See St. John "Wright V, Tukey, 3 Gush. 299 ; Whit- v. Roberts, 81 N. Y. 441 ; Lucy v. Gray, ing V. Dewey, 15 Pick. 428 ; Winn v, 61 N. H. 161. But this would proba- Cabot, 18 Pick. 553 ; Thatcher v. How- bly be true only of conduct understood land, 2 Met. 41. to be an affirmation of fact, as that the * Hovey v. Woodward, 33 Maine, indorser had received notice of dishonor. 470. See Kidder v, Blaisdell, 45 If understood to be a conclusion of law Maine, 461 ; Great Falls Go. v, Wor- from a comparison of facts, propositions, ster, 15 N. H. 414, 450 ; Housatonic or the like, quaere if the party would be Bank v, Martin, 1 Met. 294, 807 ; estopped to say the contrary ? See Blackball v. Gibson, 2 L. R. Ir. 49, Estoppel by Gonduct, post. We have 57. seen in considering the subject of judg- ' See also Independent Order of Aid ments that it is a fundamental rule of V, Paine, 122 111. 625. law that a valid adjudication estops the * 1 Story, Contracts, § 571, 5th ed. parties from disputing, not only the ^ And there may be an estoppel in facts found by the jury, but the legal pais upon a man's liability in law ; as conclusions of the court. in the case of the conduct ' of an in- * Blackburn v. Ball, 91 111. 484. dorser of a note or bill whose liability ^ Ibid. nas in truth never been fixed. Libbey 376 ESTOPPEL BT DEED. [CHAP. X. without language to that effect.^ In the case cited, in order to prove the bankruptcy of one Shelton, and the assigneeship, recourse was had to two deeds, the former of which recited a sale to have taken place under a commission of bankruptcy against Shelton, and conveyed to the defendant lands sold there- under by his assignees. To this deed the defendant was not a party. By the latter deed the defendant, acting upon the former, executed a settlement of the land upon himself after a certain event. The latter deed was silent respecting the bankruptcy. It was contended that the defendant had recognized and adopted the former deed by the latter. But the court held otherwise. Lord Denman said that there was no authority for such a general proposition that a party claiming like the defendant adopted the statements of an anterior deed which went to make up his title. According to the current of authority definite recitals in mu- nicipal bonds, of preliminary facts relating to the regularity of their issuance, such as the performance of certain conditions or taking certain steps required by law, stand upon the same footing with recitals in ordinary deeds, and hence will estop the municipality, just as they would a private corporation or citizen, from disputing the facts.' But the courts of New York have steadily refused to accept this position, and in all ordinary cases treat the recitals as open to dispute.^ This, however, has nothing to do in any case with the right of a corporation, municipal or other, to deny its entire power to do an act in question ; the re- cital is binding only upon the assumption that the corporation has the power, upon performing the required conditions, to make the instrument containing the recital No recital of such power of the corporation is binding.* 1 Doe d. Shelton v. Shelton, 8 Ad. trict v. Stone, 106 U. S. 183; Jenkins ft E. 265, 283. v. International Bank, 127 U. S. 484 « Cromwell v. Sac, 96 U. S. 61 ; Lake v. Graham, 130 U, S. 674 ; Webb Block V. Commissioners, 99 U. S. 686 ; f*. Heme Bay Com., L. R. 5 Q. B. 642 Hackett v. Ottawa, ib. 86 ; Orleans v. post, chapter 16. Piatt, ib. 676, 682 ; Lyons r. Munson, » Starin v. Genoa, 28 N. Y. 439 ib. 684 ; Bncbanan v. Litchfield, 102 Cagwin v, Hancock, 84 N. Y. 532 ; On U. S. 278 ; Menasha v. Hazard, ib. 81 ; tario v. Hill, 99 N. Y. 824. Tipton V, Locomotive Works, 103 U. S. * Northern Bank r. Porter, 110 U. S, 523 ; Harter v, Eemochan, ib. 562 ; 608. See Carroll v. Smith, 111 U. S Jasper v. Ballon, ib. 745 ; Insurance Co. 556. Further see chapter 16. V. Bruce, 105 U. S. 328 ; School Dis- SECT, n.] RECITALS. 877 § 2. General Recitals. General recitals, on the other hand, do not ordinarily estop the parties from disputing the statements made in them, because, as \i^e have said, the certainty essential to every estoppel is want- ing.^ And it is perfectly consistent with a recital of intention or purpose to show that the intention or purpose was afterwards changed ; ^ for the recital relates only to present intention. In Right V. Bucknell,^ which was an ejectment, it appeared that the plaintiff claimed under a release which recited that the grantor was ' legally or equitably ' seised of the premises. The defendant having acquired the legal title, it was held that he was not estopped to rely upon it Lord Tenterden said that it was a rule that an estoppel should be certain to every intent ; and therefore if the thing could not be precisely and directly alleged, or if it were mere matter of supposal, it was not an estoppel. In the present case there was a want of that cer- tainty of allegation in the recital which was necessary to make it an estoppel. The case of Kepp t?. Wiggett * is still more in point. In that case the condition of a bond recited that a certain person ' had been duly nominated and appointed collector.' The court held that upon a construction of the deeds this recital did not estop the defendants from showing that there had been no complete appointment of the person as collector.* The same is true of a recital in a deed that ' immediate possession is delivered.' ^ 1 Kight V. BuckneU, 2 Barn & Ad. * 2 Barn. & Ad. 278. 278 ; Muhlenberg v. Druckenmiller, 108 * 10 C. B. 85. Penn. St. 631 ; Sheffey v. Gardiner, 79 * Maule, J. observed : ' As to the Va. 318. Sometimes a party may be question of estoppel it appears to me concluded without an express recital tiiat the matters that are stated in the or affirmation, where it is evident from case, — some of them by recital in the the tenor of the deed that it was the in- condition of the bond, — and which tention of the parties that a certain state were in the knowledge of all parties, of facts should be affirmed as the in- show that in speaking of the appoint- ducement to the deed. See Van Reus- ment of Lee as collector they did not selaer ». Kearney, 11 How. 297 ; post, mean that he was fully armed with chapter 11. authority to collect the sum assessed. ' See Denman v. Nelson, 81 N. J. He had been appointed to collect, and I^* 452. was the person who was intended to • Sheffey v. Gardiner, 79 Ya. 818. 878 ESTOPPEL BY DEED. [CHAP. X. The distinction between a conveyance by general and one by particular description is further illustrated by Doe d. Butclier V. Musgrave.^ The action was ejectment to recover a certain canonry under a demise for ninety-nine years of * all that the canonry of him, the said R. A. Musgrave, of the king's free chapel of St. George, at Windsor, and all glebe and otiier lands, messuages, tenements, and hereditaments belonging thereto, and all and every the rights, rents, profits, emoluineuts, privileges, advantages, and appurtenances to the said canonry belonging.* The question was whether the action could be maintained either for the canonry, or for the house in which the defendant resided as a canon of Windsor. It did not appear that any other prop- erty had been specifically appropriated to the canonry, and the argument of counsel had been confined to the case of the house. It was held that there was no estoppel.^ The operation of an uncertain recital was considered by the Supreme Court of Pennsylvania in a recent case.® An action of be armed with power to collect and en- as between her and the defendant, as force payment of the sums assessed, mortgagee and mortgagor, the defend- Still, he was a collector within the sense ant is estopped by the mortgage deed and meaning of the expressions used in from denying that he has the title he the bond. I therefore think that the therein assumed to have, or from set- doctrine of estoppel does not apply.' tinguptitleinauyoneel.se. I entirely Mr. Justice Williams thus stated the concur in that as a general proposition ; position : * As to the remaining ques- but the question here is, not whether tion, whether the defendants are es- the defendant may set up a title in some topped by the recitals in the bond from third party, but whether he may not setting up this defence, it is to be ob- say that the house is not comprised in served that it is a rule that estoppels the description contained in the mort- must be certain to every intent. And gage deed. If the house had been in- here it is at least doubtful whether the eluded in the mortgage by a particular recital that Lee had been duly nomi- description, the defendant could not nated and appointed a collector for the have been allowed to say he had no year ending the 5th of April, 1847, and title, and that the house belonged to that duplicates of the assessment had the dean and chapter, he having only been delivered and given in charge to a permissive occupation. But here him, with a warrant or warrants for the subject-matter of the mortgage is collecting the same, should be referred described to be all that the can- to the assessments nnder schedule (A) onry of him, the defendant, of the or schedule (D). I therefore think king's free chapel at Windsor, and all there is no estoppel.' glebe and other lands, messuages, ten- 1 1 Man. & ^^. 625. euients, and hereditaments belonging * ' A preliminary objection,' said the thereto.' Chief Justice, ' has been taken on be- ' Noble v, Ck>pe, 50 Penn. St. 17. half of the lessor of the plaintiff, that SECT. II.] BECITALS. 879 debt was brought on a bond of indemnity given to a sheriff, which recited that he had paid to the defendant a sum of money, the proceeds of a sale of the goods and chattels of one Chris- tian Klusmeyer, under a fieri facias 'at the suit of the said' defendant The fact was that the sheriff had had in his pos- session the goods of several different parties levied upon under sundry executions against Klusmeyer, and that he had sold under the writ of one Collmar, and not of the defendant It was alleged by the plaintiff that subsequently to the execution of the bond it was ascertained that the defendant was not entitled to any part of the proceeds of the scJe as against the other execution creditors of Klusmeyer ; and the present action was brought to recover the money paid, for which the bond had been given. The defendant contended that the plaintiff was estopped by the recital in the bond ; but the court overruled the objection. Chief Justice Woodward said that the bond did not assert that the sale was made alone on the defendant's writ ; it was a fair construction of the recital that the sale was made on that writ in connection with others. The sheriff's return showed that he had levied and sold by virtue of Collmar's writ, as well as by that of the defendant. There was no inconsistency between these facts and the recital in the bond. Estoppel excluded facts inconsistent with itself, but not such as agreed with it The sheriff, moreover, had not recognized an absolute right in the defendant to the money paid ; if he had, he would not have taken the bond. The bond stood in the place of the. money during the litigation between the execution creditors ; and if the effect contended for were to be given to the recital, it would be nullified. The case of Naglee v, IngersoU ^ is an instance of the effect of a general recital. There had been a grant of land ' along low- water mark to the mouth of Cohocksink Creek before it was diverted and thrown to the north by the erection of wharves,' and it was held that the parties and privies were not estopped from denying that there was any encroachment by the creek which interfered with the possession of the grantee.^ 1 7 Barr, 1S6. court, said: 'Hov far the encroach* « Mr. Justice Bell, speaking for the ment infringed on the original coune, 880 ESTOPPEL BT DEED. [CHAP. Z. This subject is illustrated also in Farrar v. Cooper.^ The question raised was whether a testator, the grantee in certain deeds of mill privileges, was estopped by a recital of the exist- ence of another mill-site above to deny the right of occupancy of it The court held that he was not estopped Though the testator might not be allowed to deny the existence of the mill- site, the Chief Justice observed, with the privileges and appur- tenances belonging to it, still,' among them the right of prior occupation was not stated as appurtenant to the site. The con- veyances were all silent respecting such a right ; and the tes- tator by denying it would not necessarily contradict anything stated in thenu Nor will a general and indefinite recital in a replevin bond concerning the amount of property replevied estop a surety to show how much of the property in th& writ was in fact replevied.^ But a general recital may sometimes work an estoppel ; and whether it does or not will depend upon a proper construction of its terms and the intention of the parties.^ The case first cited, as stated by Mr. Baron Martin, was an action on a bond conditioned for the performance of covenants by the defendant and H. Warden in a deed dated in 1847 ; and the brecu^h was that they broke a covenant to perform certain acts mentioned in the deed. There was a plea by way of estoppel in confession and avoidance. The plaintiffs replied setting out the indenture ; and there was a demurrer to the replication. It then appeared that by an instrument under seal in 1854 the parties stated that, whether one inch or one hundred feet, tent. It was certainly competent to ifi not even hinted at. Nay, it is not the plaintiffs to show that it interfered expressly averred that it continued to not with the defendant's possession he- exist at the period of the conveyance, yond one inch, and if so, to prove it nor is there anything to show except did not interfere at all ; for the inquiry inferentially that the defendant could once entered upon there was nothing in not at once have possessed himself of the deed itself to limit a point at which the whole one hundred and fifty-nine it should be stayed.* feet conveyed. Without laboring the ^ 34 Maine, 894. argument it is perhaps sufficient to say ^ Miller v. Moses, 56 Maine, 128 ; that the extent and continued existence State v. N^uert, 2 Mo. App. 295. of the alleged encroachment being thus * Southeastern Ry. Co. v. Warton, 6 left at large was open to the inquiry of Hurl. & N. 520 ; Carpenter v. Buller, 8 the jury as matter of fact both as to its Mees. & W. 209. continued existence and its alleged ez- SECT. II.] BECITAI^. 881 with the exception of certain claims contained in the schedule, the plaintiffs and the defendant and H. Warden had settled, adjustjsd, and mutually satisfied every other account, claim, or demand arising out of the contract on which the action was brought. It was contended that as the language was general, the effect which the court was to give to it did not depend upon the intention of the parties. The court, however, ruled otherwise.^ 1 The learoed baron above named meaning of the deed is that the arbi- said : * Every deed must be construed tration shall be confined to the matters according to that which, looking at the specified in the schedule ; and the ad- document itself, appears to be the in- mission is made for the purx>ose of that tention of the parties. It is true that deed. I do not think diat the parties in construing a deed the court cannot ever contemplated that whatever cause look at collateral matters, but the in- of action either might have against the tention of tbe deed as appearing upon other should finally cease. A recital in the face of it must be regarded. If such a deed would be binding, if it was in the present case it had appeared the bargain on the faith of which the that the parties intended to abandon parties acted. But that is not the case every claim except those referred to in here. Neither is this an estoppel by the schedule, the argument on the part means of a recital contained which is of the defendant would have been un- the foundation of the action. See Car- answerable. But when the whole deed penter v. BuUer, 8 Mees. & W. 209. . . . is looked at, no such intention appears. The arbitration was a wholly collateral The parties intended to refer certain matter. The admission is evidence, and matters to arbitration. They intro- may be strong or of very little value, duce the recital that, ** whereas, with according to circumstances. Here I the exception of the claims of the said collect from the deed that it was not Charles Warton and Henry Warden the intention of the parties to prevent contained in the schedule, the said the plaintiffs from bringing such an ac- Charles Warton and Henry Warden tion as the present' Cliannell, B. ob- and the Southeastern Railway Com- served : ' If we could see the pai-ties had pany have settled, adjusted, and mu- agreed to release all other claims in con- tually satisfied every other account, sideration of the agreement to refer, claim, or demand which the said par- then there might be an estoppel ; but ties have or hath against each other that does not appear to have been their arising out of the said contract, or any meaning. On these grounds the plain- other account, matter, or thing what- tiffs are entitled to judgment. It was soever, as they the said Southeastern said that this is not a question of inten- Railway Company and the said Charles tion. It may be that when a deed con- Warton and Henry Warden do hereby tains a recital of a particular fact in severally admit and acknowledge ; but express terms the effect of the recital the claims of the said Charles Warton cannot be got rid of by showing what and Henry Warden, contained and set the intention of the parties was. But forth in the said schedule, as well as when the language is general we may the amount claimed thereby, are dis- collect the intention from the terms of putod.*' And the recital goes on to the whole deed ; and in that way we state that it had been agreed that the have endeavored to arrive at the true claims contained in the schedule should constraction of the deed in the present be referred to an arbitrator. The true case.' 882 ESTOPPEL BY DEED. [CHAP. X. The rule respecting the recital of immaterial or unnecessary matters is the same as that in relation to general recitals ; the recital does not work an estoppel.^ The doctrine seems to rest on that of a case already presented ^ in which it was held that a party to an instrument under seal is not estopped in an action by the other party not founded on the deed, but collateral to it, to dispute the matters recited ; and so the court of New York observed in the case above cited The date of a deed may be denied when it is immaterial, though not otherwise.^ In the case first cited the plaintiff exe- cuted a deed to the Rockingham Manufacturing Company, bear- ing date the 28th of January, 1836, and the company were not organized until the 10th of February, 1836, though incorporated the November preceding, and in fact this agreement was made on the 22d of January, 1836, before the date of the deed and the organization of the company. But the court said that the date of a deed might always be controlled by evidence of the actual delivery. Here the agreement recited the deed, and re- cited that it was then made and so made at their request, and this was conclusive that the deed was then made, and the date was immaterial. The ground of the estoppel, indeed, appears in those cases in which a party is held not estopped by a statement in a deed unless it appears that there was an intention that the statement should not be questioned, or that injustice would follow if the court were to allow it to be contradicted.* In- Hays v. Askew, just cited, it was said by Mr. Justice Pearson that to render a recital an estoppel it must show that the object of the parties was to make the matter a fixed fact as the basis of their action. In the case of Den d. Brinegar v. Chafl&n ® it had been laid down 1 Reed v. McCourt, 41 N. Y. 486 ; Eggleston, 11 Maas. 282, 285 ; Kimbro Walker v, Sioux City Co., 65 Iowa, 563 v. Hamilton, 2 Swan, 190. See Wash- (unnecessary matter of law); Champlain ington Co. Ins. Co. v. Colton, 26 Conn. K. Co. t^. Valentine, 19 Barb. 484. See 42. also Deery v. Cray, 5 Wall. 795 ; Com- * Hays v. Askew, 6 Jones, 68; South- ings V. Wellman, 14 N. H. 287, 298. eastern Ry. Co. v, Warton, 6 Hurl. & * Carpenter v. Buller, 8 Mees. & W. N. 520 ; Blackball v. Gibson, 2 L. R. 209. Ir. 49, 57. « Dyer v. Rich, 1 Met. 180 ; Cady «. * 8 Dev. 108. SECT. II.] RECITALS. 888 Upon that ground that there was no estoppel to either party to a deed of bargain and sale to show that one of the bargainors, recited to be a feme covert, was in fact a feme sole at the time the deed was executed.^ The same doctrine applies to the ac- ki^wledgment of receipt of the consideration in a deed; the recital, according to the weight of authority, is not conclusive. Mr. Justice Cowen, as we shall see, expressly rests the case upon the principle above set forth.^ ^ Henderson, 0. J. speaking for the fendant or rather the bargainee than if court, said : * Recitals in a deed are es- she had been sole. For if sole, the deed toppels when they are of the essence of was effectual by sealing and delivery, the conti'act ; that is, where unless the If she was covert, her private examina- facts recited exist the contract, it is pre- tion was necessary to make it her deed, sumed, would not hav« been made. As In truth, her coverture was a fact for if A recites that he is seised in fee of which the bargainee neither gave nor certain lands which he bargains and received anything. Nor did he on that sells in fee he is estopped to deny that account receive anything by the deed he is seised in fee ; for without such which he would not have received if she seisin it is fair to presume that the con- had been sole. Neither did it form the tract would not have been made. Bat basis nor in 'any manner move or con- if the recital be that he is seised in fee duce to the contract. It is therefore by purchase from C, here neither the mere matter of evidence, and like all bargainor nor bargainee is estopped from other evidence may be rebutted by con- averring and proving that he is seised trary proof. . . . But the case does not by purchase from D, unless it appear rest upon general reasoning. If A S that the seisin in fee by purchase from by his deed, reciting that she is a feme C was part of the contract, and with- covert when in truth she is a feme sole, out which it would not have been made, grants an annuity, it is a good grant, for For ordinarily the seisin only is of the es- that is but a void recital although the sence of the contract, and how and from grantee had not put it in his writ ; and whom derived are but circumstances. So it cannot be a conclusion to him when of every other recital. And this distinc- he shows the deed. Viner's Abr. M. tion reconciles the many apparent con- s. 8, pi. 11 ; Perkins, s. 40. So if a feme tradictions in the books, some declaring covert, reciting by her deed that she is that recitals are estoppels and others a feme sole, grant an annuity, this is a that they are not In the case under void grant, and she shall not be con- consideration, that the feme was the eluded by this recital.' Perkins, s. 41, wife of Jacks was not of the essence note. of the contract It formed no part of ' McCrea v. Purmort, 16 Wend, it It was a mere circumstance of de- 460 ; post, chapter 16. scription, more unfavorable to the de- 884 ESTOPPEL BT DEED. [CHAP. ZI. CHAPTER XI. TITLE BY ESTOPPEL. § 1. History of the Subject, The subject upon which we now enter * presents at once the most striking and the most complicated doctrine in all the ' curious learning ' ^ of estoppel. An estate by estoppel arises, generally speaking, in cases where a grantor without title makes a lease or conveyance of land by deed with warranty, and sub- sequently by descent or by purchase acquires the ownership. This after-acquired title of the grantor ' inures,' * it is usual to say, by estoppel to the benefit of the grantee.* It would perhaps more accurately state the situation, under our modem deeds of conveyance, to say that the deed, which the grantor engages to warrant and defend, is a solemn stipulation that the grantor has the title which he is now about to transfer to the gi-antee as a purchaser for value. In the face of this he cannot be heard to say, after making the transfer, that he had not that title at the 1 Chapter XI. of Rawle on CoveDanU excellent and curious kind of learning,' for Title is recommended for study in etc Coke, Litt. 352 a. connection with the following pages. ' A favorite expression used to be In the 5th edition of that acute and that the after-acquired estate ' feeds * learned work the author, now, unfortu- the estoppel. nately, deceased, examined the subject ^ Such covenants in a deed by a hus- of title by estoppel afresh, and threw band would not bar the grantor from much new and valuable light upon it. claiming statutory homestead, existing No one did more to refute the vicious at the time of executing the deed, doctrine, which has found favor in some Doyle v. Cobum, 6 Allen, 71 ; Sillo- states, that estoppel by deed is, or should way v. Brown, 12 Allen, 30, 33. The be made to be, a conveyance. To Judge deed need not be attested to enable it to Hare, however, in his notes to the raise an estoppel against the grantor, on Duchess of Kingston's Case, 2 Smith's the covenants. Contra, against a pur- Leading Cases, is due the credit of start- chaser from him even with notice. Cham- ing the tnie view. berlain v. Spai^ur, 86 N. Y. 603 ; Wood The reader is also referred to the v, Chapin, 3 Kern. 509, under statutes, chapter on this subject in Tiedeman, Title by estoppel is peculiar in this Real Property. matter of binding after-acquired in- * 'Touching estoppels, which is an teresta. See ante, p. 143. SECT. I.] TITLE BT EBTOPPEL. 885 time. So his new title lies lifeless in bis hands against such purchaser; the estoppel not being a true conveyance.^ By the old common law only four kinds of assurance possessed the efficacy to pass an after-acquired estate, -^ the feoffment, th^ fine, the common recovery, and the lease. The last named is the only one of these that has come down to us and is now in use. The common recovery long since became obsolete, and seems to have left little or no trace of its existence in America. The fine was substantially an acknowledgment of a feoffment of record ; and we may pass this too as affording no independent aid to our present inquiries, and proceed to the consideration of the first-mentioned and most important species of assurance, the feoffment. This kind of conveyance, says the Touchstone, ^ was the most ancient in use, and in some respects exceeded in efficacy that by fine or recovery ; for it was of such a nature, by reason of the livery of seisin ever inseparably incident to it, that it re- moved all disseisins, abatements, intrusions, and other wrongful and defeasible titles, and reduced the estate clearly to the feoffor, and through him to the feoffee, when the entry of the feoffor was lawful ; which neither fine, recovery, nor bargain and sale by deed indented and enrolled would do when the feoffor was out of possession by disseisin. And the learned editor of the Touchstone, Mr. Preston, in a note to this passage says that to make a feoffment good and valid, nothing was wanting but possession ; and when the feoffor had possession, though entirely naked, yet a freehold or fee simple passed by it against the feoffor by reason of the livery. The feoffment passed not only all present estates and interests of the feoffor, but also barred and excluded him (and his heirs prior to the statutes de bigamis * and quia emptores *) from all future estates, rights, and possibilities in favor of the feoffee.* This effect of barring all future interests was produced, it has been said, by the presence of the word ' dedi ' in the charter of 1 Otherwise a yolnntary grantee * 4 Edw. 1, c. 6. would acquire the new estate ; which ^ 18 Edw. 1, c. 1. 11 not true. ^ Touchstone, 204. < Page 208. 25 386 ESTOPPEL BT DEED. [CHAP. XI. feoffment, which word imported a warranty to defend the estate.^ We must now ascertain the character and operation of this ancient warranty. As defined in the work to which we have before referred * the warranty was a covenant real, annexed to an estate of freehold or inheritance, whereby a man and his heirs were bound to war- rant the same, and either upon voucher or by judgment in a writ of warrantia chartse to yield other lands and tenements to the value of those of which there should be an eviction, in which case the party received a compensation for the lands lost ; or the warranty might be used by way of rebutter, in which case it operated as a defence to the possession.^ The effect of the warranty was to bar and conclude the war- rantor personally (and before the statutes already mentioned his general heirs as distinguished from his heirs in tail of the land so warranted) forever, so that all his rights, present and future, were bound.* 'And therefore,' in the example given in the Touchstone, ' if the father be disseised, and the son in his life- time release all his right to the land to the disseisor, and make a warranty in the deed, and then the father dieth and the right descendeth to the son, albeit the release doth not bar the son, yet the warranty doth bar him/ • In the case of assets the warranty, if lineal, was a bar of an estate in tail against the heir ; and if the warranty was collateral, it was a bar with or without assets (except in cases provided for ^ Tonchstone, 184 ; Coke, Litt. 383, his heirs by certain services, the law 884. We shall have something to ob- annexed a warranty to this grant, which serve on this word somewhat later. bound the feoffor and his heirs, to whom 2 Touchstone, 181. the services (which were the considera- ' The subject is more fully explained tion and equivalent for the gift) were by Blackstone. ' By the feudal con- originally stipulated to be rendered. . . . stitution,* he observes, 4f the vassal's But in a feoffment in fee by the verb title to enjoy the fee was disputed, he "dedi" since the statute of quia emp- might vouch or call the lord or donor tores the feoffor only is bound to the to warrant or insure his gift ; which if implied warranty, and not his heirs ; he failed to do, and the vassal was because it is a mere personal contract evicted, the lord was bound to give him on the part of the feoffor, the tenure and another feud of equal value in recom- of course the ancient services resulting pense. And so by our ancient law if, back to the superior lord of the fee.* before the statute of quia emptores a 2 Black. Com. 300. man enfeoffed another in fee by the feu- ^ Touchstone, 182. As to the heir dal verb "dedi," to hold of himself and see Bracton's Note Book, case 944. SECT. I.] TITLB BT ESTOPPEL. 887 by statute) of an estate in fee simple or fee tail, and all possi- bility of right thereunto. A word is necessary upon the perplexed subject of collateral warranty. This mode of assur&nce of title arose after and by reason of the passage of the statute de donis conditionalibus. Previous to that act, or rather previous to the statute of Glou- cester, passed a little earlier, the heir was in every case bound by the ancestor's warranty. As a covenant real the warranty descended upon him, and bound him, even though he claimed title from a third person. These statutes were intended respec- tively to relieve the heir from such injustice, and to establish entails. The statute of Gloucester protected the son of tenant by the curtesy from the father's warranty. He was now safe when he claimed title from his mother. The statute de donis went further, protecting the son generally from the father's war- ranty in the father's feoffments of his own estate ; but this was the extent of the protection. The doctrine of warranty still prevailed in other cases ; ^ and so when it happened that the son was heir also of one who was collateral to the title to the land in question, as where he was heir of his uncle as well as of his father, it was only necessary for the collateral ancestor to make a warranty of the land. This descended still upon the heir, and bound him to warrant just as it did before the statute. Thus was a contrivance found to avoid the effect of the above-named statutes ; and it was called collateral warranty. The warranty was collateral to the title ; not necessarily, it should be ob- served, collateral to the blood. The father's warranty might be collateral as well as the uncle's in the case above put ; as where the title to the land had been in the uncle, and his nephew was his heir.' An entail could so be effectually barred ; and * And it was held still to prevail if that plain way in resolving his many the heir received by descent another excellent cases in his chapter of war- «'state from the ancestor equal to that ranty, of saying the warranty of the conveyed by the latter. 2 Inst. 293 ; ancestor doth not bind in this c&se be- Rawle, Covenants, 6, 7, 4th ed. cause it is restrained by the statute ot ^ No part of the law is more compli- Gloucester or the statute de donis, and cated than this subject of collateral it doth bind in this case as at the com- warranty has been made. 'If Little- mon law because not restrained by ton,* said Vanghan, C. J. in Bole v. either statute (for when he wrote, there Horton, Vanghan, 875, 'had taken were no other statutes restraining war- 888 ESTOPPEL BT DEED. [CHAP. ZI. this evasion of the policy of feudalism, modified somewhat by modern statutes,^ was a recognized mode of assurance in Eng- land until within about fifty years of the present time.^ And in either sort of warranty, lineal or collateral, if the warrantoifshould implead the warrantee the latter (the tenant) might show the warranty and demand judgment whether con- trary to the warranty the warrantor should be suffered to demand the thing warranted ; and this was called a rebutter. This re- butter was given as a defence to the title to avoid circuity of action ; since if the demandant were to have recovered contrary to the warranty, the other party would recover the same lands or lands of equal value by force of the warranty * The warrantee, again, might at any time before he was im- pleaded for the land bring a writ of warrantia chartas upon the warranty in the deed, against the warrantor or his heirs ; and by this proceeding all the land that the heir had from the ancestor was bound and charged with the warranty in the hands of all persons to whom it should afterwards go, from the im- petration of the writ; so that if the land warranted should afterwards be recovered from the warrantee, he should be entitled to recover other lands of the heir, or of the warrantor if living.* ranties ; there is now a third, 11 H. 7), merely tenant by the curtesy, and had his doctrine of warranties had been no other estate of inheritance. But the more clear and satisfactory than now it warranty of a tenant in tail still falls 18, being intricated nnder the terms of upon the heir in England. 2 Black, lineal and collateral ; for that in truth Com. 303 ; Russ v. Alpaugh, 118 Mass. is the genuine resolution of most, if not 869, 373. The common law of collateral of all, his cases. For no man's warranty warranty, if in force in Massachusetts, doth bind or not, directly and a priori, is so only as modified by this statute of because it is lineal or collateral, for no Anne. Ibid. Collateral warranty as it statute restrains any warranty under stood before the St. 4 & 5 Anne prob- those terms from binding, nor no law ably never prevailed in this country, institutes any warranty in those terms. Ibid. But those ara restraints by consequent ' Warranties and real actions gener- only from the restraints of warranties ally were abolished by 8 and 4 Will. 4, made by statutes.' c. 27, § 39 ; ib. c. 74, § 14. See fur- ^ See St. 4 and 6 Anne, c. 16, § 21, ther in regard to collateral warranty, by which the collateral warranty of an Bawle, Covenants, c. 1 ; Russ v, Al- ancestor having no estate of inheritance paugh, 118 Mass. 869; Southerland 9. in possession was declared void against Stout, 68 N. C. 446. the heir. This rendered void against * Coke, Litt. 265 ; Touchstone, 182. an heir the warranty of one who was * Touchstone, 184. The remedy of SECT. I.] TITLE BY ESTOPPEL. 889 These observations are sufficient to show that the old common- law warranty was wholly different in< character from the cove- nants now in use in the conveyance of real estate. The old warranty, before the statute de donis, ran with the land and operated against the heir regaixUess of assets from the feoffor ; and after the statute the same was true of collateral warranty. The modern covenant affects only the grantor unless, first, the heir have assets from him, and then only to the extent of such assets,^ or unless, secondly, the heir claim the land as heir of the grantor ; in which latter case the land would itself become assets in the hands of the heir (if he were allowed to recover), with which he must as in the other case respond to his ancestor's covenant of warranty.* The policy of the law, it will thus be seen, is to prevent circuity of action. If the heir, having assets from his father the grantor, were to be allowed to recover the land which the father had conveyed with warranty, though the title had come to him from his mother or from any other collateral source, he would be compelled at once to respond to his father's covenant to the extent of his assets (not exceeding of course the value of the land) ; so that he would be in no better position in a pecuniary aspect, which alone the law regards, after the litigation than before. The law, therefore, wisely holds him estopped, or more properly rebutted, from claiming the land. And the same would be equally true if he should claim the land as heir of his father (under a title acquired by the father after the conveyance), regardless of assets ; for the land, if a recovery were permitted, would itself become assets. This is upon the supposition that the warranty is in the usual general form, for the grantor, his heirs and assigns ; but if the warranty should be personal only, and not for the heir also, the latter would not be barred even with assets from claiming the land from another source, as from his mother ; since this would be no breach of the warranty, and there would be no place for recovering other lands in snch a case 104 Penu. St. 675 ; Utterback «. Phil- was never in use in Massachusetts, lips, 81 Ky. 62. Without warranty the Russ V. Alpaugh, 118 Mass. 869 ; Mar- heir is not bound. Bohon v. Bohou, 78 ston V. Hobbs, 2 Mass. 438, 438. Ky. 408. ^ Carson v. New Bellevieu Com. Co., ' See Boss v. Alpaugh, supra. 390 ESTOPPEL BY DEED* [CHAP. XI. a rebutter. He could not, however, claim the premises as heir of the grantor in this or in .any other case^ for as such a claimant he would be in privity with the grantor, and would be estopped accordingly. So much as introductory to what we have to say upon the existing law, and as showing the origin of this branch of the doctrine of title by estoppel We shall recur to the subject hereafter in discussing the respective rights of a grantee before title acquired and a grantee after, under our existing modes of conveyance. We turn now to the modem doctrine ; and first, of leases by estoppel § 2. Leases : Where no Interest passes an Estoppel arises. It is an established rule of law, regardless of covenant, and therefore unlike the case above considered, that where no interest passes by a sealed lease, an estate by estoppel is created between the paities and those claiming under them in case of a subsequent acquisition of title by the lessor. The newly acquired title 'feeds' the estoppel Thus, in the example put in the case of Trevivan v. Lawrance * if a man makes a lease by indenture of D, in which he hath nothing, and afterwards purchases D in fee and suffers it to descend to his heir, or bargains and sells it to A, the heir or A shall be bound by this estoppel, and so shall the lessee and his assignee. For when an estoppel works on the interest of the land, it runs with the land into whose hands soever the land comes ; and an ejectment is maintainable upon the mere estoppel. Mr. Preston, ^ in speaking of this doctrine, says that the lease first operates by way of estoppel ; and finally, when the grantor obtains an ownership, it attaches on the seisin and creates an interest, or produces the relation of landlord and tenant There is a term beginning by estoppel, but for all purposes it becomes an estate or interest It binds the estate of the lessor, and therefore continues in force against him and his heir. It also binds the assigns of the lessor and the lessee. 1 1 Salk. 276 ; s. c. 6 Mod. 258 ; 2 cited by Tindal, C. J. in Webb v. Aub- Ld. Raym. 1036. tin, 7 Man. & G. 701, 724. ' 2 Preston, Abstracts, p. 210, as SECT. III.] TITLE BT ESTOPPEL. 891 We must now consider the converse of this rule ; for though it does not strictly present the subject of an estate by estoppel, it is still so intimately connected with the subject just con- sidered that any separation would seem unnatural and forced. § 3. Leases : Where an Interest passes no Estoppel arises. The converse of the above-stated rule is also true, that where an interest passes by the deed of lease, there is no estoppel^ Doe d. Strode v, Seaton was an ejectment to recover certain premises in the city of Bristol^ against the assignee of a lessee for years. It appeared that the lessee had covenanted to pay rent and deliver possession of the premises at the end of the term to the lessor, his heirs and assigns. The action was brought by the devisee of the lessor after the expiration of the term. The assignee proposed to show that the lessor was only tenant for life of the premises ; while the plaintiff contended that he was estopped by the deed. The defendant prevailed.* This point arose again in a recent case, ^ in which the Vice- Chancellor said that it was conceded that if a termor, or the owner of any estate in land which might possibly be sufBcient to allow an interest created by his deed to take efiect out of 1 Coke, Litt. 47 b ; Doe d. Strode v. Strode, having a life estate, bad a right Seaton, 2 Croni. M. & R. 72S. But it to grant a lease for twenty-one yean is held that this rule applies only to determinable upon his life, and there- the case of leasehold estates ; and that fore an interest passed ; and where an in the common conveyance with war- interest passes there is no estop|)el. In ranty the estoppel applies against the Coke, Litt 47 b, it is said : " A, lessee grantor in respect of after-acquired in- for the life of B, makes a lease for years terests as well where he had an estate by deed indented and after purchases at the time of the grant as where he had the reversion in fee ; B dieth ; A shall none. House v. McCormick, 57 N. Y. avoid his own lease, for he may confess 810. and avoid the lease which took effect in ''Is there any case,' said Mr. poiTi^ q/^ tnfer««^ and determined by the Baron Parke, 'which establishes that death of B." That case is similar to the words of such a covenant make any the present except that there the rever- difference ? Who could have sued for sion was purchased by the lessor in- a breach of this covenant, for not giv- stead of the lessee. That shows that ing up possession at the end of the an interest passes, and then there is term ? It was not a covenant running no estoppel.' with the land, and therefore the heir ' Langford v. SelmeSi 8 Kay & J. could not sue. This lease does not 220. operate as an estoppel because Colonel 892 ESTOPPEL BY DEED. [CHAP. ZI. BQch estate, make a deed purporting to grant such interest, which in the event fails to some extent from the circumstance of the grantor's own estate not being of sufficient duration to enable the grantee to take all that the deed purported to give him, — as in the illustration (supra) in Coke, Litt, if a tenant for life were to demise for a term, and then die during the term, — an actual interest would pass by the grant, and the grantee would not be estopped from showing the determination of such interest, as by the death of the grantor during the term ; that is to say, admitting that the lease was for a term of so many years he would be at liberty to prove that the lessor had only a life interest, and that accordingly by his death the lease had deter- mined. For though it was an admitted principle that the lessee could not dispute the title of his landlord, it was equally clear that where he could confess and avoid it by showing that the landlord's estate had determined, he was permitted to do so, and thus prove that the lease existed no longer. The rule was held to be the same where the interest was ab initio insufficient.^ ^ ' In truth,' said the learned judge, effect the whole object of the deed, yet * the question in this case is whether or where the interest was ab initio insuffi- not there is any reversion on which the cient, there, in order that the deed may purchaser of the ground rent would not lose its effect, the parties are es- have a right to proceed for its recovery topped from saying that the actual inter- by distress or re-entry. As respects est which it purported to grant has not the reversion the case is in a singular passed. The only authority which has position. Unquestionably a termor who been cited is Gilm.an v. Hoare, 1 Salk. grants a lease longer than his term there- 276, which was of a different character, by parts with his whole interest ; and That was a case where a person having during the term of the original lease a reversionaiy interest made a grant, the tenant would hold of the owner in and it was supposed from the r^itort in fee simple, who had granted the original 1 Salkeld that an interest there passed lease ; but the argument is that on the by way of estoppel tluring the first sabsequent acquisition of the fee simple period, and out of the estate during the by the original lessee an estoppel arose, latter period of the demise. It api)eHrs, l^ which on the expiration of the orig- however, fromanother re[)ortof the same inal lease the supposed under-lessee wiU case, said to be in 3 Salkeld, 8e:ht. The consequence in such a case is that if he afterwards acquire the reversion, he cannot disturb the lessee until the term of the kase shall have expired; that is, the tenant, because he took nolliing by the lease, has an interest by estoppel. It is to be observed, however, that Mr. Preston says that in equity, if the lessor afterwards acquire an interest sufficient to make good the lease, he may be compelled to give effect to the instrument by way of a further assurance.* That is (probably), he may be compelled to grant a new lease for the remainder of the term. The original lease will not itself operate even in equity upon the new interest.® In regard to the t-enant the rule (as we shall see hereafter) is still broader. Thus, while he cannot deny that the landlord had a title when he granted the lease, he may show that, being himself already in possession, he accepted the lease under a mistake of fact concerning the title, or through the fraud of the lessor. And the above-mentioned rules prevail as well where the lease is verbal (when not void under the Statute of Frauds) as where it is in writing under seal.^ § 4. Grantor and Grantee. We proceed now to the consideration of the doctrine of title by estoppel as applied to existing conveyances of laud by deeds of bargain and sale, quitclaim, mortgage,* and the like. The general rule, as we have said,® is that upon the acquisition of title by the grantor of a warranty deed for value, made before title accrued, the interest is a lifeless thing in the hands of the grantor; or, according to common language, it * inures' to 1 See Langford v. Selmes, 8 Kay & * See post, chapter 1 4. J. 220. ^ See post, pp. 411, 412 ; Haney v. 2 Abstracts, 217. Ray, 64 Mich. 636. > Langford v. Selmes, sapra. * Ante, p. 884. 8ESCT. IV.] TITLE BY ESTOPPEL. 896 the grantee, giving to him a title by estoppel ;^ and the contrary if the conveyance was without warranty.* We shall devote the remainder of the present chapter to a minute examination of this rule.* The proposition must be divided into two parts, according as it is to be applied between the grantor (and his heirs) and the grantee, and between this grantee and a subsequent grantee of the grantor to whom a conveyance of the same premises has been made after title accrued. The two cases, as we expect to show, stand upon a very different footing. First, then, upon the application, between grantor and grantee, of the above-stated rule. To determine whether the grantee will have against the grantor a title by estoppel upon the acquisition of title by the latter — in other words, whether the grantor will be estopped from setting up the after-acquired interest against his grantee and thus from claiming the premises — will depend upon the nature of the deed. It is not always necessary that the deed should contain covenants of warranty to operate in this way ; nor will it always operate in this way when it does contain such ^ Bat tenant in tail in remainder v. Harris, 102 Mass. 826 ; Forster v. cannot, apart from statute, bar the en- Forster, 129 Mass. 559. A grantor, tail by warranty deed. Allen v. Ashley notwithstanding his warranty, could School Fund, 102 Mass. 262. The stat- probably buy in a tax title oh a sale nte allowing tenant in tail in poasesnon of the premises for taxes due from his to bar the entail is another thing. See grantee ; but not for taxes due when he Holland v. Cruft, 3 Gray, 162 ; Whit- (the grantor) owned the estate. Han- taker V. Whittaker, 99 Mass. 864. nah v. Collins, 94 Ind. 201. * Smith V. Williams, 44 Mich. 240 ; ' Quere in regard to the effect of a Brown v, Phillips, 40 Mich. 264 ; Boone covenant to extend a line, or to convey, «. Armstrong. 87 Ind. 168 (mortgage) ; as title should subsequently be acquired, Randall v. Lower, 98 Ind. 255, 257 where there is no present grant beyond (mortgage) ; Hannah v. Collins, 94 Ind. the title owned T See Hoboken v, Penn- 201 (attempt to set up tax title); Du- sylvania R. Co., 124 U. S. 656, 692, gan V. FoUett, 100 111. 581 ; Wadharas where it seems to be admitted that there v. Swan, 109 III. 46 ; Dobbins v. Cm- might be an estopi)e1. But an estoppel ger, 108 111. 188 ; Smith v. De Russy, of the kind which is the mere deduction 29 N. J. Eq. 407 ; Hart v. Gregg, 32 of a statute may, it is said in this case, Ohio St. 502 ; Kelly v. Seward, 51 Vt. be extinguished by a later statute. If, 436 ; Western M. Co. ». Peytonia Coal however, a right of property had really Co., 8 W. Va. 406. So too of an . v. Libera- heirs forever. This description would tor Soc., 10 Ch. D. 15 ; Heath o. Crea- seem to show very clearly that neither lock, L. R. 10 Ch. 80 ; Crofts v. Mid- party contemplated any other than the dleton, 2 Kay & J. 194 ; Jacksonville inchoate title created by a location R. Co. V. Cox, 91 111. 500. Release of ander a New Madrid certificate, what- dower is not conveyance, and the widow ever that might be, and not a fee sini- may of course set up a title which she pie, and that the grantee already had has acquired since releasing. McLeery or claimed to have that inchoate right V. McLeery, 65 Maine, 172. by virtue of a deed from Hertzog*s * Gibson v. Chouteau, 39 Mo. 586. trustee, and the grantor releases, quit- In this case Holmes, J. in delivering claims, and conveys all his interest in judgment said : * If this deed purports the same land and title for the smaU to convey the real estate in fee simple consideration expressed. It is essen- absolute, the after-acquired title passes tiaUy a quitclaim deed, and nothing under the statute, otherwise not. There more. It makes no positive averment is no covenant of warranty, and no that the grantor is seised or possessed estoppel by virtue of any kind of ex- of any particular estate in the premises pressed warranty. The words, " bargain, which the deed undertakes to convey sell, release, quitclaim, and convey,'* and confirm. Such averments, to create are words of release and quitclaim, an estoppel, must be positive and cer- merely. They carry the grantor's in- tain. ... No seisin or possession of terest and estate in the land described, any particular estate is affirmed in the whatever it may be ; they do not of deed, either in express terms or by themselves purport to do anything necessary implication, whereby an es- more ; they do not even raise the statute toppel might be created. In Van Rens- covenants implied in the words, '* grant, selaer v. Kearney, 11 How. 297, the bargain, and sell," nor would these deed expressly affirmed that the grantor transmit a subsequently acquired title, had seisin and possession of the es- Chauvin v. Wagner, 18 Mo. 531. There tate conveyed, and undertook to convey is no English authority that any other and confirm the same to the grantee, conveyance than a feoffment, fine, or This is not a deed of that character, lease operated by way of estoppel to It falls within the general principle, pass an after-acquired title. Bawle, which is fully recognized in that case. Covenants, 408. The land Is described that a deed of this character, which as being part of the tract located under purports to convey and is understood to a New Madrid certificate to James Y. convey nothing more than the interest O'Carroll, or his legal representatives, or ^tate of which the grantor is seised and as being the same parcel of land or possessed at the time, does not oper- conveyed to Pierre Chouteau, Jr. by ate to pass or bind an interest not then Robert Wash, as trustee of Joseph Hert- in existence. In French v. Spencer, 21 zog, by deed recorded. The haben- How. 228. also the deed expressly af- dum is to Pierre Chouteau, Jr. and his firmed the existence of the particular SECT. IV.] TTTLB BY ESTOPPEL. 899 statutes ia other states, as in Illinois, Arkansas, California, and Alabama have received a like construction.^ In the last-named state it is provided by statute that the words, ' grant, bargain^ and sell,* or simply ' bai^ain and sell,' import, in the absence of qualifying language, an express covenant to the grantee, his heirs, and assigns, that the grantor is seised of an indefeasible estate in fee simple, and for quiet enjoyment.' Next, concerning the cases in which the grantor's deed con- tains a covenant of warranty. Whether the effect of such a interest and estate conveyed, and em- nant of warranty, but that it did not powered the grantee to make the loca- reach and onght not to apply to a deed tion and receive the patent for the land where the grantor expressly guards when that interest should be ripened against such an inference by inserting a into a complete title. This is clearly special warranty against himself only not such a deed ; nor does it purport to and those claiming under him. The convey a fee simple absolute. To have statute requires that the deed should this elfect under the statute the deed undertake to convey a fee simple abso- must undertake to convey an indefeasi- lute. A similar statute in Illinois has ble title. It must not be a quitclaim received the same construction which is deed, merely transferring the grantor's given to it in this state. Frink v. interest, whatever it may be, but a deed Darst, 14 111. 804. In Cocke v. Brogan, which expressly undertakes to convey. 5 Ark. 693, under a like statute the the land itself, and to convey it in such after-acquired title was held to pass by a manner that the grantee is not to be deeds which conveyed the lots in fee disturbed in his possession by any one. simple. This deed can have no greater Bogg V. Shoab, 13 Mo. 365. It must force than a mere quitclaim which ex- contain such positive and certain aver- pressly conveys only the right, title, roents of an absolute title in fee sim- and interest of the grantor, as the case pie as would amount to an express war- was in Valle v. Clemens, 18 Mo. 486. ranty, if contained in a covenant of We conclude, therefore, that the after- warranty, that the grantor was seised acquired, inchoate, equitable title to this and possessed of such title to an estate, location did not pass and inure to the which he undertook to convey, assure, grantee under this deed, and that neither and confirm to the grantee against all the grantee nor these defendants there- the world, and Would therefore create by became the legal representatives of an estoppel by virtue of which the sub- O'Carroll, Ruddell, and Wilt, in respect sequently acquired title might inure to this land.' to the grantee. The statute provision ^ Frink v. Darst, 14 111. 304 ; Cocke would seem to be the same in principle t>. Brogan, 5 Ark. 693 ; Vallejo Land as the doctrine laid down in these de- Assoc, v. Viera, 48 CaL 572 ; Chapman dsions of the Supreme Court of the v, Abrahams, 61 Ala. 108; Stewarts. United States, proceeding upon the Mea Anderson, 10 Ala. 504 ; Carter v. Doe, of an estoppel. It is said in Bogg v. 21 Ala. 72, 91 ; Blakeslee v. Mobile Shoab that the statute extends to eveiy Life Ins. Co., 57 Ala. 205. deed which was obviously intended to ^ Jones v. Reese, 65 Ala. 184. For convey and purported to convey a fee the English law see 44 & 45 Vict. ch. simple absolute, even without a cove- 41, § 19.. 400 ESTOPPEL BT DEED. [CHAP. XI. conveyance be to bar the grantor from claiming the after- acquired estate will depend upon the nature both of the grant and of the warranty.^ We have already considered the cases in which the warranty operates to bar the grantor's heir, or rather descendant;^ but the question now is when the warranty will bar even the grantor. The effect of a limited warranty in a grant of ' right, title, and interest' was considered in the case of Comstock v. Smith,® which was a writ of entry. The demandants counted upon their own seisin within thirty years and a disseisin by the tenant. The tenant pleaded that before the demandants had anything in the premises, one Waters was seised thereof in fee, and that while he was so seised he (the tenant) bai^ined with him verbally for the purchase of the land. Afterwards the de- mandants, having disseised Waters unlawfully, and pretending to have a good title, granted the land in fe^ to the tenant with warranty ; and the tenant continued for a year and upwards to hold under this deed. The tenant then, in order to get back the consideration paid, by deed 'granted, sold, and* quitclaimed' to the demandants in fee all his ' right, title, claim, and demand in and unto ' the pi^mises, covenanting ' against the lawful claims and demands of all persons claiming by or under him ;' where- upon Waters conveyed the premises by deed to him. The de- mandants replied that the tenant was estopped by his deed to set up this defence ; to which on oyer of the deed there was a demurrer, which was sustained.* ' ^ Hnzzey v. Heffennan, 148 Mass. oommon law,' said Mr. Justice Wilde, 232, 234 ; Thielen v, Richardson, 35 * that if one oonveys lands or other real Minn. 509. estate with a general covenant of war- * Ante, pp. 389, 390. As ?ieir of the ranty against all lawful claims and de- grantor he is barred of course by the mands, he cannot be allowed to set up warranty whenever the grantor is barred, against his grantee or those claiming All title which the grantor acquires under him any title subsequently ac- after the conveyance is made available quired either by purchase or otherwise, to the grantee by a general warranty ; Such new title will inure by way of and of course the heir is barred as heir, estoppel to the use and benefit of his It is only when he derives title to the grantee, his heirs and assigns. This premises from another that he can hold principle is founded in equity and jos- them in the face of his ancestor's war- tice as well as the policy of the law. It ranty. is just that a party should not be per- "13 Pick. 116. mitted to hold or recover an estate in * ' It is a well-settled principle of the violation of his own covenant ; and it S£CT. IV.] TITLE BT ESTOPPEL. 401 It is held that if a party having a vested and a contingent interest in property convey by deed, with general warranty, 'all is wise policy to repress litigation and mandants; the title of Waters being, as to prevent a circuity ot* actions when the plea avers, the elder and better title*; better or equal justice may be adminis- and this would also be no breach of the tered in a single suit By such a grant tenant's covenant. He did uot under- with general warranty nothing passes, take to convey to the demandants an nor indeed can possibly pass, excepting indefeasible estate but only his own the title which the grantor has at the title, nor did he agree to warrant and time of the grant ; but he is estopped defend it against all claims and de- to set up a title subsequently obtained mands but only against those derived by him, because, if he should recover from himself ; by which he must be against his grantee, the grantee in his understood to refer to existing claims turn would be entitled to an action or encumbrances, and not to any title against the grantor to recover the value which he might afterwards acquire by of the land. The ))rinciple of estoppel, purchase or otherwise from a stranger, therefore, not only prevents multiplicity (Ellis r. Welch, 6 Mass. 246, 250). . . . of suite, but is sure to administer strict It was then contended by the liemand- and exact justice ; whereas if the grantee ants' counsel that, admitting the tenant were driven to his action to recover the is not estopped by his covenant of war- value of the land, exact justice might ranty, he is nevertheless estopped by ^ot be obtained because the land might his conveyance to deny that he had any possibly not be estimated at its just title in the land at the time of the con- ▼alue. If, however, the grantee were Teyance. This also is a well-established not entitled to recover the value of the principle of the common law. Coke, land on the grantor's covenant of war- Litt. 45, 47 ; Jackson v. Murray, 12 ranty, then in such case it is obvious Johns. 201 ; Jackson v. Bull, 1 Johns, that this species of estoppel would not Cas. 81. But the tenant in his plea be applicable. And such appears to be does not deny that he had any title the law in regard to the covenant in to the land ; on the contrary, he avers question, by which the demandants at- that before the time of his conveyance tempt to estop the tenant to set up or he was in possession of the land under plead the title of Waters. The ten- Waters, that afterwards the demand- ant's covenant is a restricted covenant, ants disseised Waters, and being seised and is coextensive with the grant or re- by disseisin they conveyed to the tenant lease. He agrees to warrant the title all their right and title with a covenant granted or released, and nothing more ; of warranty similar to the one contained that title only he undertook to assert in his reconveyance to them. The de- and defend. To extend the covenant mandants in their turn would be es- further would be to reject or do away topped to aver that they had no title the restrictive words of it, and to enlarge in the land, nor is there nny such aver- it to a general covenant of warranty ment in the pleadings. The tenant at against the manifest intention of the the time of his reconveyance might have parties. . . . Now if Waters after the had a valuable interest in the land by tenant's quitclaim deed had evicted possession and improvements although the demandants, this would have been no Waters had a paramount title. This breach of the tenant's covenant Or if interest, whatever it was, passed to the the tenant now held under Waters with- demandants by the tenant's deed ; and out having obtained the fee from him, he it was all the title he had to convey or might pray Waters in aid, and thus de- was expected to convey. If under tbe^e fend himself against the title of the de- circumstances the demandants could 26 402 ESTOPPEL BT DEED. [CHAP. ZI. his right, title, and interest ' therein, the deed passes only his vested interest ; and he will not be estopped to claim an after- acquired interest in the property.^ In the case first cited one Soley conveyed by the words quoted one eighth of an estate devised to him by his grandfather, one half of which devise was a contingent remainder ; and it was contended that, though this last-named interest did not pass by the deed, still that when the estate afterwards became vested, the deed operated by way of estoppel. The court, however, was of a different opinion. Chief Justice Shaw said that the deeds did not contain anything which prevented the petitioner from asserting his title to the contingent interest. The indenture which had been most relied upon contained no stipulation or averment that the petitioner's share and property were of any particular proportion. It was manifest that the conveyance was fully satisfied by applying it to the vested interest.- No allegation or averment was falsi- fied by a denial of the claim to the land in controversy, because there was no averment of the nature or extent of the right, title, and interest under the grandfather's wilL Nor did it make the case different that there was a covenant of warranty ; for this was simply equivalent to a warranty of the estate he then held, and was to be confined to the estate then vested.^ Indeed, it is settled in Massachusetts, Maine, and elsewhere that the covenant of warranty in a quitclaim deed of the gran- tor's right, title, and interest will be limited in effect to such estate as the grantor then had, however the covenant may be expressed.^ Thus in Hoxie v. Finney, a deed of this kind con- now acquire without any consideration that the effect of a warranty will de- another title by estoppel, we should be scend uj^on subsequent remote grantors, compf*Iled to. admit that estoppels are though they may convey only their as odious as they are sometimes said to right, title, and interest, so as to bar be. But the doctrine of estoppel aids them from setting np after-acquired much in the administration of justice ; titles against their grantees. * Cove- it becomes odious only when misnnder- nants of warranty may descend through stood and misapplied.' the operation of deeds that are mere ^ Blanchard v. Bi-ooks, 12 Pick. 47 ; naked releases indefinitely from party McBridge t?. Greenwood, 11 Ga. 379 ; to party.' Powers v. Patten, 71 Maine, Graham v. Graham, 65 Ind. 23 ; Nichol- 683 ; Wilson v. Widenham, 61 Maine, son V. Caress, 46 Ind. 479 ; Hanrick v. 666 ; Brown v. Staples, 28 Maine, 497. Patrick, 119 U. S. 166, 176 ; Rawle, « Brown v. Jackson, 8 Wheat 449. Covenants, 393, 4th ed. See Avery v. « Hoxie v. Finney, 16 Gray, 882 ; Akina, 74 Ind. 283, 291. It is held Doane v. Willcutt, 6 Gray, 828; San- SECT. IV.] TITLE BY ESTOPPEL. 403 tained a covenant that the grantor was lawfully seised in fee of the premises, that they were free from all encumbrance, that he had good right to sell and convey the same, and that he would warrant and defend them to the grantee, his heirs and assigns, against the lawful claims and demands of all persons. And yet it was held that the covenant was not broken by an eviction of the grantee under an encumbrance created by the grantor before making the conveyance. The covenants were held to be gov- erned by the gi*anting part of the conveyance, 'all my right, title, and interest/ It would follow in accordance with the doctrine of Comstock v. Smith, above referred to, that the gran- tor could recover the premises from his grantee under a title acquired from another which was in existence when the deed was executed. In other states, however, the use of such general covenant of warranty operates as effectually by way of rebutter as it does in a conveyance of the fee simple.^ Jones v. King was a case in point. The grant was of ' all right, title, interest, and claim ; and the covenant read as follows : ' And the said James A. King and William King, for themselves and their heirs, do by these presents covenant to and with the said Thomas C. King that they will forever warrant and defend the title to the said tract of land or lot of ground, to be free from the claim or claims of himself and his heirs, and all other persons claiming by, through, or under him, and also from the claim or claims of all and every other person or persons whomsoever* Mr. Justice Breese, speak- ing for the court, said that it was a well-settled principle of the common law that if one conveys lands or other real estate with a covenant of general warranty against all lawful claims and de- mands, he cannot be allowed to set up against his grantee therein or those claiming under him any title he himself may subee- foid V. Sanford, 135 Mass. 814 ; Allen Holbrook 9. Debo, 99 111. S72. See V. Holton, 20 Pick. 458 ; Blanchard r. MerriU v. Harris, 102 Mass. 826 ; Rnss Brooks, 12 Pick. 47 ; Sweet v. Brown, v, Alpaugh, 118 Mass. 369. 12 Met. 175 ; Hanrick v, Patrick, 119 i Jones v. King, 25 111. 883 ; MiHs U. S. 156, 175 ; Kinnear v. Lowell, 84 v. Catlin, 22 Vt. 98 ; Steiner v, Bangh- Maine, 299 ; Locke v. White, 89 Ind. man, 12 Perm. St. 106. See Calvert v, 492 ; Shnmaker v. Johnson, 85 Ind. Sebright, 15 Beav. 156. 88 ; White v, Brocaw, 14 Ohio St. 839 ; 404 ESTOPPEL BT DEED. [CHAP. ZI. quentlj acquire &om another by purchase or otherwise. Such new title would inure by way of estoppel to the use and benefit of his grantee, his heirs and assigns ; it was not just that a party should be permitted to hold or recover an estate in violation of his own covenant. In this connection grants with general warranty made by trustees, executors, and administrators, without authority, on behalf of the cestuis que trust or heirs, may be referred to. The warranty being unauthorized by the person intended, the law treats it as the undertaking of the trustee, executor, or adminis- trator himself ; and it follows upon the principle of rebutter that such person and his privies will, if the grant was general, be precluded from claiming against the grantee and his privies any estate which such trustee, executor, or administrator may happen to acquire in the premises conveyed.^ It is also laid down in Massachusetts that qualified covenants against the lawful claims and demands of all persons claiming by or under the grantor, in a quitclaim deed reserving a right of way for a certain purpose, do not estop the grantor from claim* ing a right to enjoy the way for some other purpose than that mentioned if the way has been laid out and accepted by the public authorities.^ Nor does a covenant of warranty estop the grantor to claim a way of necessity over the land granted.' Upon these propositions the courts would probably all be agreed. In another case ^ involving the construction in a deed of pai^ tition of a similar warranty to that in Flagg v. Flagg Mr. Chief Justice Shaw said that a covenant that the grantee should hold free from all right, title, interest, or claim of the grantor could not have greater force than a direct covenant of seisin, which was not broken by the existence of an outstanding paramount title. It did not estop the plaintiff from « showing that at the time of the partition a third party held the superior title, which the plaintiff had since acquired and now relied upon.* This also would probably be everywhere accepted law. 1 Ppouty «. Mather, 49 Vt. 415. * Doane v, WUlcutt, 5 Gray, 82S. < Flagg V. Flagg, 16 Gray, 175. ^ See also Wight v. Shaw, 5 Cash. < Brigham v. Smith, 4 Gray, 297. 56 ; Mmer v. Ewiog, 6 Cosh. 84 ; Smith SECT. IV.] TITLB BT ESTOPPEL. 405. In a lucent case in Maine ^ the plaintiff brought an action for dower. It appeared that her husband had conveyed the premises to one Joab Harriman by a deed to which the plaintiff was not a party. Joab quitclaimed the premises to one under whom the defendant by sundry mesne conveyances claimed. This deed of quitclaim contained no covenants of warranty, but closed in these words : * So that neither I, the said Joab Harriman, nor my heirs, or any other person or persons claim- ing from or under me or them, or in the name, right, or stead of me or them, shall or will, by any way or means, have, claim, or demand any right or title to the aforesaid premises or their ap* purtenances, or any part or parcel thereof forever.' The defend- ant claimed that the plaintiff had barred her right to dower by a deed of release made to Joab Harriman suhsequerUly to his quitclaim of the premises. But the court ruled that tliis was no bar.^ The propriety of such a construction has, however, been very properly doubted.' A similar covenant in Trull v, East- man * was regarded as a covenant real, operating by way of re- butter against the future claims of the grantor, his heirs and assigns.^ A widow's covenant against all encumbrances, in a mortgage of real estate by her, has been held, it may be added, to estop her to set up a claim of dower in the premises.^ A deed of land through which a stream runs, though it con- tain the usual covenants of warranty, does not estop the grantor from subsequently erecting a dam below the land, and thereby flooding it under the protection of mill statutes, in the same manner as if the proprietor had derived his title from some other V. Strong, 14 Pick. 128 ; Steams v. Hen- qnently acquired rights of Joab inure dersass, 9 Cush. 497. to the use of the grantee.' Pike v, 6al-^ ^ Harriman v. Gray, 49 Maine, 587. vin, 29 Maine, IBS. ' *As between the demandant and * Rawle, Covenants, 414, 415, where Joab Harriman,' Appleton, J. remarked, it is said that Pike v. Galvin, and the 'she would be estopped. But the re- subsequent case of Loom is v, Pingree, lease to Joab does not inure to his gran- 43 Maine, 299, 814, have not elsewhere tees, and not inuring by estoppel to been followed, their benefit, they cannot set it up as ^8 Met. 121. a bar. It has been repeatedly settled ' See also Miller v. Ewing, 6 Gush, that a grantee is not estopped from set- 84 ; Jackson 9. Bradford, 4 Wend, ting up a subsequent title by language 619. such as is found in the deed of Joab to * Hoppin v. Hoppin, 96 111. 265. James Hairiman. Nor do the sabee- 406 ESTOPPEL BT DEED. [CHAP. XI. source.^ And of coarse if a certain portion of a tract of land is reserved by the grantor, the covenants of warranty cannot pre- vent him from asserting his right thereto whether under a pres- ent or an after-acquired title.^ If the covenants should become extinguished, they can have no effect, it is plain, upon after-acquired interests. In a recent case ^ the plaintiff brought ejectment under the following circum- stances : The land had been conveyed by A to B with warranty ; B conveyed to G; and C then conveyed it back to the first grantor, A. The plaintiff took a conveyance of the land from B, after he had conveyed to C ; and in a suit against A he now claimed that A's after^cquired title inured to him by reason of the covenants in the first deed by A to B. But the court ruled otherwise. The fact that the plaintiff claimed through divers mesne conveyances from the defendant, who had conveyed with warranty, and the further fact that the defendant had again ac- quired the title, did not affect the case, and constituted no estop- pel against the defendant. The covenants, which passed to C, had been extinguished by the conveyance of the land from C back to the defendant. The plaintiff having taken a deed from an intermediate grantee after he had parted with his title was not in a position to set up an estoppel. This doctrine respecting afte]>acquired estates applies, when the grant and warranty are sufficient, though the original con- veyance was fraudulent and invalid against creditors.^ The case cited was an action of trespass to land ; the plaintiff having conveyed his life interest in trust for the benefit of his wife by deed of quitclaim with special warranty against all claims of the grantor or his heirs, or of any other person claiming under him or them. The deed was fraudulent and invalid, the grantor having been insolvent at the time. Subsequently having taken the benefit of the insolvency law, he became the purchaser of the assignee's interest in the land, and received a conveyance. The court held that this new title vested in his grantee, and 1 Dean v. Colt, 99 Haas. 486. The Bankraptcy Act of 1841 did not * GiU 9. Grand Tower Co., 92 IlL extingnish covenants of warranty in a 249. deed. Bnsh v. Cooper, 18 How. 82. * Goodel V. Bennett, 22 Wia. 566. * Gibbe v. Thayer» 6 Gush* 80. SECT. IV.] TITLE BY ESTOPPEL. 407 • that the action could not be sustained. Chief Justice Shaw said that the covenant in the original deed differed from a general warranty in this, that one was a warranty against any and all paramount title, while the other was against the grantor himself and all persons claimiiig under him.^ In the present case the plaintiff was claiming the very same title which he had conveyed with warranty ; and it was quite distinguishable from the case where the grantor subsequently purchased another estate. It was immaterial, he said, whether or not the original conveyance was fraudulent against creditors. If it was not, then the prop- erty did not pass to the assignee, and the plaintiff took no title uoder it ; if it was fraudulent, it was by reason of acts done by him, which had given rights to creditors to reclaim the land and hold it, and was an encumbrance against which he had warranted. In this case the purchase of the interest was only an extinguish- ment of an encumbrance ; and by the doctrine of estoppel this purchase of the outstanding right of creditors inured to the benefit of the plaintiffs grantee. Improvements erected by the grantor in possession also inure to the benefit of the grantee.^ The case cited was an action to recover possession of certain improvements on property in the hands of a tenant of the owner, by virtue of an attachment and execution against the latter. The owner had prior to the attach* ment mortgaged the property to a third person, and had then erected the improvements in question. The pourt held that the action could not be maintained ; the ground taken being that the owner by his mortgage would be estopped in a contest between him and his grantee from asserting a title to the property, by the covenants in the deed. Covenants for quiet enjoyment in themselves are held to be as effective by way of estoppel as words of conveyance.^ The 1 Newcorob v, Presbrey, 8 Met. 406. qaiet enjoyment upon an agreement for ^ Hamphreys v. Newman, 51 Maine, a lease in the future extends only to the 40. time when possession is to be taken. * Long Island R. Co. v. Conklin, 29 Hertzberg v. Beisenback, 64 Texas, 262; N. Y. 572 ; Goodtitle v. Bailey, 2 Cowp. King v. Reynolds, 67 Ala. 288. In New 597 ; Smith v. Williams, 44 Mich. 240. York the remedy is against the party in- Some authorities hold that in regard to terfering with the lessee's right of pos- the acts of strangers the covenant for session. Gardner v, Keteltas, 3 Hill, 408 ESTOPPEL BY DEED. [CHAP. XI. doctrine seems to rest upon the same grounds as that concerning the estoppel of a grantor in fee with warranty to set up an out- standing title against his grantee, namely, that of the prevention of circuity of action. Should the grantor, having acquired a paramount title, attempt to disturb and regain the possession of his grantee, the latter would be entitled to set up the covenant for quiet possession by way of rebutter ; and this^ it would seem, would as effectually operate against the grantor as if he had made a direct convjeyance of the land. Indeed, whatever the fonn of the covenant of assurance, if a grantor obligate himself to protect his grantee in the estate which he assumes to convey, he will be estopped to set up an after-acquired title against him and turn him round to a suit upon the covenants.^ It is important to notice the distinction between covenants of seisin and against encumbrances, and the covenants for further assurance and of warranty.^ The distinction was clearly pre- sented in the case of Chauvin v, Wagner.' In this case Chauvin and wife joined in a conveyance of the wife's land by a deed which the court held ineffectual to convey her estate by reason of a defective certificate of acknowledgment. This deed con- tained statutory covenants of seisin, against encumbmnces, and for further assurance. The plaintiffs, who were heirs of the grantor their father, but without assets from him equal to the value of the property conveyed, now brought ejectment to recover it of the defendants, who claimed under the conveyance men- tioned. The court held that the plaintiffs were not estopped by the covenants.^ 830. But see Coe v. Clay, 5 Bing. 440, Collier v. Gamble, 10 Mo. 467. 'The and the two cases just cit«d. others,' he proceeded to say, * are broken 1 Smith V, Williams, 44 Mich. 240. as soon as made if in the one case there * Chauvin v. Wagner, 18 Mo. 631. is not an indefeasible seisin or in the See Heath v, Crealock, L. R. 10 Oh. 30; other there is an encumbrance. A General Finance Co. v. Liberator Soc, right of action exists in either case 10 Ch. D. 15. npon the appropriate coyenant, on the > 18 Mo. 531. execution of the deed ; but the dam- * Mr. Justice Gamble, who delivered ages to be recovered may be enhanced the opinion, said that but one of the by subsequent events. A recovery of statutory covenants in the deed in land by title paramount is not the question ran with the land, which was breach of the covenant but evidence the covenant fox further assurance, of the extent to which the grantee is 8BCT. IV.] TITLS BT ESTOPPEL. 409 There remain to be mentioned certain cases of implied war- ranty having a similar operation. In the case of a partition of damuified by the breach, which existed Cas. 212 ; Smith r. Baker, 1 Younge & as 800D as the covenant was made. C. Ch. 223. if he had acqaired a title Mosely v. Hanter, 15 Mo. 828. The snbeeqiiently to his conveyance and such liability on the covenants, arising as title had descended to his heirs, they soon as the covenants were made, would would have been compelled to execute bind the heirs of the grantor, having the covenant. The present plaintiffs assets by descent, in just the same man- have never acquired any title to the uer that they would have been bound property from their father. In respect by a bond for the payment of money to it there is no privity between them in which he bound his heirs. The cov- and their father. It was acquired four- enants are not connected with nor do teen years after his death. They are they run with the land. These cov- responsible as his heirs upon his cove- enants do not operate as the ancient nants as far as tbey have assets by descent oovenant of warranty to transmit a sub- from him. And if in the present case seqnently acquired title to the covenan- it were shown that the assets by descent tee, nor do they operate as a rebutter were equal to the value of the property against the grantor in respect to their when they acquired the title, their ob- obligation as covenants. In some cases ligation then as heirs, in respect to the recitals and admissions contained in assets descended, might have been held deeds are held to estop the grantor complete to make the assurance. ' [See and those claiming under him from Rector v. Waugh, 17 Mo. 13; Dean v. asserting a title to the land conveyed Doe, 8 Ind. 475 ; 2 Smith's L. C. 742, when such assertion of title would be 6th Am. ed. For the early common- contrary to the recital or admission law rule see Jourdan r. Jourdan, 9 made in the deed. Goodtitle v. Bailey, Serg. & R. 268.] The duty to make 2 Ck>wp. 597; Carver p. Astor, 4 Peters, an assurance could not devolve on them 86 ; Kinsman v. Loomis, 11 Ohio, 478 ; while the title was in their mother. Root V. Crock, 7 Barr, 880 ; Stowe v. The covenant provided by the statute, Wyse, 7 Conn. 214. The principle in if written in the deed in the form ex- these and similar cases would warrant pressed in the act, would simply con- tbe decision that the covenants con- tain a stipulation " for further assurance tained in the words, "grant, bargain, thereof to be made by the bargainor, hia and sell," and which are to be regarded heirs and assigns." The heirs of the as if written out in the deed, should grantor, as such, are bound to make as an assertion of present seisin in the assurance, but certainly not until there grantor estop him and those claiming is something to be done by which the under him from asserting a title at the grantee's title can be secured. But time of making the conveyance. . . . nothing could be done by them until If the plaintiffs are not estopped by the title came to them by descent the covenants of seisin or against en- from their mother, and they could not cnmbrances, are they affected by the be held to convey it then unless they covenant for further assurance? This had assets of etfual value from their coveuant runs with the land. If Fran- father. No such fact has been shown ds D. Chauvin, the ancestor, had ac- in the case. If the plaintiffs are to be quired a further or better title to the held bound to make assurance because of premises after his conveyance, he would equal assets descended from the father, have been compelled specifically to exe- it must be shown by the defendants.' cute the covenant by conveying such Sealed articles of agreement for the title. 2 Sugden, Vendors, 641 ; 2 Ch. conveyance of land, it may be observed. 410 ESTOPPEL BT DEED. [CHAP. XI. lands bj writ between co-tenants the law imports a warranty of the common title, and holds it incompatible with their duty to each other for either to become demandant in a suit to recover any portion of the land by a paramount title and thus to place himself in antagonism to his co-tenants and their common war- rantor.^ The rule, it is said, does not apply to the case of partition in pais, by conveyance between the parties ; in that case there appears to be no estoppel, apart from recitals, unless there is an express warranty.^ And the rule itself has been subjected to some qualification. In a case in Ohio a question arose of the effect of a partition between co-devisees upon a then inchoate right of dower in one of them, which subsequently became perfect * The facts in the case cited were these : The plaintifif was the widow of Joseph Walker, and the daughter of Josiah Hedges, and also sister of the defendant. During her coverture her husband had been seised in fee of the premises in which she now claimed dower. The land was conveyed to Hedges her father without any release of dower. He died leaving this and other land to his children ; they made partition of the property, and the land in contro- versy was assigned to the defendant. It was held that the rule of estoppel did not apply, because the title which had ripened in favor of the demandant was at the time of the partition inchoate and incapable of being asserted.^ do Dot amonnt to a covenant for further v. Willcntt, 6 Gray, 828; R. c. 16 Gray, assarance, and do not estop the obligor 868. from claiming the land. Anonymoua» 1 * Walker v. Hall, 15 Ohio St 856. Hayw. 381. * Mr. Chief Justice Brinkerhoff, ^ Rountree v, Denson, 59 Wis. 522 ; speaking for the court, said : ' Is the Weisert;. Weiser, 5 Watts, 279; 1 Wash- plaintiff precluded from asserting her bum, Real Prop. 431, 432; 2 Black, claim to dower in a portion of the Com. 800. lands partitioned among her and her co- ^ Rountree v, Denson, 59 Wis. 522 ; devisees by the mutual warranty which Weiser v. Weiscr, 5 Watts, 279. Where the law implies as arising and subsist- the grant is in fee with general war- ing inter se between parties to a parti- ran ty, the co-tenant grantee will have tion so long as the privity of estate the benefit of the estoppel against his continues between them f This is a late associate, the grantor, should he at- serious question, and one not free from tempt to set up an after-acquired title, difficulty. That such warranty as a Rountree v. Denson, 59 Wis. 522. Con- general rule exists at common law, is tra, if the warranty is qualified so as to clear from the old books. "If the pur- extend only to present interests. Doane party of one parcener be evicted by a SECT. lY.] TITLE BY ESTOPPEL. 411 The case of a mortgage given back by the purchaser to the vendor of an estate stands upon a footing of its own. While title paramoant the partition shall be should be limited to a claim for contri- defeated ; for the partition imporla a bution a^Dst his late co-tenants to vHirranty and condition in law that the reimbarse him for his expenditure for one shall enter upon the other and the common benefit. 4 Kent, Com. enjoy her part in parceny, if she be 371, notes. And except the case of evicted, as long as the privity between Woodbridge v. Banning, 14 Ohio St. them continues." Comyns's Dig. "Far- 828, I have not been able to find a case cener/* C, 13 ; Coke, Litt. 173 b and in which any exception to the applica- 174 a. ''Applying this common-law tion of these general rules has been duty of CO- tenants to aid each other in recognized. But the cases in which the protecting what had been a common doctrine of implied warranty between estate even after partition made, the partitioners has been invoked and ap- law holds it incompatible with their plied are few ; and all of them present duty towards each other for either to the simple case of a voluntary pur- become the demandant in a suit to re- chase (after partition made, and before cover any portion of the land by a eviction by adverse paramount title) paramount title and thus to place him- of an adverse and paramount title, and self iu antagonism to his co-tenants and the attempt to assert such title against their common warrantor.'* '*And where co-partitioners. But this is not such a partition has been made by law, each case. As in Woodbridge v. Banning, partitioner becomes a warrantor to all supra, this is a case in which by the the others to the extent of his share so operation of law and the act of God long as the privity of estate continues there has subsequent to the partition between them. And inasmuch as a ripened in favor of the demandant a warrantor cannot claim against his own title which potentially existed in her at warranty, no tenant after partition the time of the partition, but which made can set up an adverse title to the was then inchoate and incapable of portion of another for the purpose of being asserted. In none of the other ousting him from the part which has cases were the facts analogous to the been partitioned off to him." 1 Wash- facts in this ; and the question as to bum. Real Prop. 431, 432 ; Venable whether the common-law doctrines of V. Beauchamp, 3 Dana, 321 ; Feather implied warranty between co-partition- V. Strohoecker, 8 Penn. 505 ; Jones v. ers apply to a case of this kind did not Stanton, 11 Mo. 433. That these are in them arise. Moreover, it seems to the established general rules bearing me to be not unworthy of notice that VL\)on the question under consideration the doctrines of implied warranty and must be admitted ; and it is equally consequent estoppel between co-parti- clear that when they are applied to the tionera originated at common law ; and ordinary case of the acquisition by pur- though based on considerations of nat- chase of an independent, adverse, and ural equity they were long applied only paramount title by one co-tenant, and in proceedings at common law by writ its assertion by him against another of pai*tition. That form of proceeding is after partition, the operation of these now obsolete, and has never had a place rules is equitable and just. In such in the practice of onr courts ; it being case it is but just that the purchaser of superseded by proceedings in equity and the adverse title should be held to have under special statutes. And it seems to purchased for the common benefit of us that when the principles of the corn- all parties to the prior partition, and mon law are as here invoked as guides that his rights under such purchase to proceedings in equity, they ought to 412 BBTOPPEL BT DEED. [CHAP* ZI. it is true that where money is loaned, or aomething equivalent done, upon the security of a mortgagiet in fee with general warranty, the mortgagor cannot set up an after-SrCquired estate against the (unsatisfied) mortgagee ; ^ it is equally true that where the transaction is simply a purchase, with such mortgage back to secure payment of the purchase-money, the rule does not apply.* In Bandall v. Lower the court well declared that a mortgagee who had with warranty granted the property to the mortgagor, and yet had no title at the time, had broken his own covenant,' and by his own act in assuming to grant what he did not own lessened the estate which his grantee mortgaged back to him. It was not good faith in the grantor to grasp for after-acquired property, when he himself had assumed to convey all the title which his mortgagor undertook to mortgage back ; it was enough that the grantor got back what he had conveyed. That too was all that could in reason be considered to have been the intention be applied only so far as the ends of tion, to recover lands which the parti- justice will allow. The warranty under tion had assigned to other parties, he consideration is not a warranty in fact, was held not to be estopped by the pro- but a warranty by implication of law ceedings in partition. I think I am not only. The law raises the implication mistaken in sa^ng, however, that in that for the attainment of justice ; and the case the common-law doctrine of im- implication should cease whenever its plied warranty between co-partitioners application will work injustice. To hold escaped the attention of the court. Had Mrs. Walker estopped to claim dower in it been otherwise, the reasons given for this case by reason of an implied war- the decision would probably have been lanty would be unjust to her ; but to modified ; but the decision would have award it to her in accordance with the been the same.' provisions of our statute in respect to ^ Randall v. Lower, 98 Ind. 256; improvements made subsequent to alien- Boone v, Armstrong, 87 Ind. 168. ation by the husband, and decreeing ' Randall v. Lower, supra ; Brown contribution by all the co-partitioners to v. Phillips, 40 Mich. 264 ; Haynes v. recompense Mrs. Hall for the loss of her Stevens, 11 N. H. 28 ; Smith v. Con- equal proportion of the estate exclu- nell, 32 Maine, 123. The case of Hitch- sive of the dower estate of Mrs. Walker cock v. Fortier, 65 111. 239, contra, is wiU do justice to all. . . . The case of not well considered, and is denied in Woodbridge v. Banning, before referred Randall v. Lower, to, was closely analogous to this. There ' And the purchaser could sue there- a partition was had between parties as for notwithstanding the covenants of heirs of Anthony Banning, deceased, his mortgage. Ibid. ; Hubbard v. Nor- Subseqnently a spoliated will of the ton, 10 Conn. 422 ; Connor t^. Eddy, common ancestor was established and 25 Mo. 72 ; Lot v, Thomas, 2 N. J. admitted to probate. And in an action 407 ; Sumner v. Barnard, 12 Met. 459 ; by a devisee under the will who had Haynes v. Stevens, 11 N. H. 23 ; ante, been a party to the proceeding in parti- p. 359. SECT, y.] TITLE BT ESTOPPEL. 418 in the grant of an estate momentarily to the purchaser, and directly reconveyed. The authorities indicate some divergence in regard to the ground of the rule,^ but the rule itself is clear. § 5. OrarUee before arid Grantee after Title a/squired? We proceed to the case of a contest between a grantee be- fore title acquired and a grantee afterwards, who had no notice of the prior conveyance. And it now becomes necessary to ascertain more precisely than heretofore the nature of a title by estoppel under existing modes of conveyance. Does the after-acquired estate actually pass to the grantee as soon as the grantor acquires it, or is the grantor only precluded from setting it up ? And if the latter is the true view, does the estoppel fall upon the assigns of the grantor without notice, as well as upon the heirs ? ' The answer to the first question has been antici^ pated already, in the statement that estoppel is not conveyance.^ 1 See Randall v. Lower, 98 Ind. 255, by the tenns of his deed undertakes to 260. convey to the grantee an indefeasible ^ The author published the sub- estate In fee simple absolute, and shall stance of the following pages in the not, at the time of such conveyance, American Law Review for January, have the legal title to the estate sought 1875. The discussion, to be fully un- to be conveyed, but shall afterwards derstood, should be read entire. acquire it, the legal estate subsequently * There are pernicious statutes of acquired by him shall immediately poM recent date in not a few of the states, to the grantee, and such conveyance which make the estoppel act as a con- shall be as effective as thongh such ▼eyance, not saving the rights of pur- legal estate had been in the grantor chasers for value without notice, after at the time of the conveyance.' Comp. title acquired. See Bawle, Covenants, Laws, 1879, c. 22, § 5, p. 211. I 248, note, 5th ed. Even between If the statute is to stand in this grantor and grantee the doctrine that form, clauses should be added saving the estoppel is a conveyance is per- the rights of purchasers for value with- nicions, for it cuts off, if the expression out notice after the title was acquired, means anything, the right of action by and also of grantees who may have sued the grantee upon the covenants, if he for breach of warranty or for fraud ; and fails to sue before the grantor acquires it should be restricted, inter paites also, a title ; and acquiring a title after suit to purchasers for value. But the better would defeat an action well begun. course by far would be to strike out the The statute of Kansas may be quoted words, ' immedistely pass to,' and sub- as an example of what at first might stitute for them the words, 'shall not be seem to be a very innocent and proper, available sgainst,' or ' shall not be al- if unskilful, piece of legislation, and of leged against,' and then restrict the act course it is not likely that any harm to purchasers for value, was inUnded by it: 'Where a grantor * Ante^ p. 885« 414 ESTOPPEL BT DEED. [CHAP. XI. But that remains to be shown ; and the answer to the second question must also be specially given. The whole subject should be considered first, as it stood before the Statute of Uses, and secondly, as it has been modified by that statute. At common law (that is, before the Statute of Uses) there were three assurances which operated to pass future interests to which the alienor had at the time no title, — the feoffment, the fine, and the common recovery, — to which a fourth, the lease, may be added as possessing a similar efficacy. The feoffment was the conveyance by which the lord of a manor parcelled out his lands to his vassals in consideration of fealty and service; and as the vassal promised allegiance for life, the donor in the earliest times gave to him a life estate, and in later times a fee. The feoffment created in all cases a life estate at least, — by right if the feoffor owned an estate in the lands equal to that conveyed ; by wrong if he did not In the lat- ter case all estates, whether in expectancy or possession, which stood in the way of a gift of the freehold were displaced ; ^ and in most cases the parties injured lost their right of entry, and were driven to an action at law. This was by force of the seisin and possession of the feoffor. Seisin always gave an estate of freehold whether the party was in by right or by wrong ; and it followed that by the delivery of it (which of course required possession) an estate for life or in fee passed to the donee. If the donor had not a sufficient estate in himself to effect tlie object by right at the time of the convey- ance, and should afterwards acquire the requisite interest^ he was barred from setting it up against his feoffee. The feoffment ' passeth the present estate of the feoffor, and not only so, but barreth and excludeth him of all present and future right, and possibility of right, to the thing which is so conveyed/ ' There was no way in which the feoffor could avail himself of an after-acquired title except by disseising his feoffee. He had of course no right of entry in pais, for the interest acquired was necessary to make out the freehold which the livery of seisin had conveyed ; and he could not bring a writ of entry, for the feoffee would set up the feoffment as an estoppel He could 1 Toachstooe, 208 ; ante, p. 886. * Toachstone, 204. SECT. T.] TITLB BY ESTOPPEL. 416 not convey by release, fine, or recovery, for these assurances also required a possession; and he could not alien the new interest by grant or bargain and sale, for these conveyances when used to convey present interests were, as we shall see, void at law in all cases, aud ineffectual even in equity without possession. ' He cannot- purchase the fee,' says Mr. Preston, ' since his feoffment is a disseisin ' of the owner.^ That is, since the owner has been put put of possession, he cannot alien to one not in possession. Even a release of the new interest to any one but the tenant in possession would be void.^ Such was what is often called 'the high and transcendent effect ' of an estoppel at the common law ; in point of fact it appears to be nothing more than the transcendent effect of a delivery of the donor's seisin in the gift of a fief. He who tech- nically disseised another acquired for all purposes, so long as he retained uncontested possession, an estate of freehold ; and the disseisee though having still the right of property could make no use of it until the disseisin was terminated, except by way of release to the party in possession. Now, this estate of freehold was as effectually passed by livery of seisin as it was acquired by disseisin ; and for the feoffor to set up an after-acquired interest against his feoffee would be repugnant to the estate conveyed, as much so as if his conveyance had been rightful. But this effect of the conveyance has been commonly called an estoppel Among the acts giving rise to an estoppel in pais (and in early times the feoffment was an act' in pais) Coke mentions livery, entry, etc. ; these being acts of a notorious char- acter having the like conclusive effect of a deed.^ From this it appears that the estoppel upon the feoffor arose from the very nature of the conveyance. But there was another important function of the feoffment arising either from an ex- press warranty, or, in the absence of such, from the operative word *dedi,' which should be distinguished from the estoppel. The word ' dedi ' implied a warranty on the part of the feoffor (and before the Statute of Quia Emptores, of his heirs) that the vassal should be protected in his estate ; but this as well as an 1 2 Preston's Abetracta, p. 211. • Coke, Litt 862 a. * Coke, Litt. 270 a. 416 ESTOPPEL BT DEED. [CHAP. XI. express warranty was usually Bomething different from the estoppel. The estoppel was merely the effect of the livery, operating actually to pass after-acquired interests ; the implied warranty arising from dedi, like an express warranty, was probably most generally used either as a voucher against the feoffor when the lands were demanded by another, or as ground for a writ of wairantia charts in either of which ways the feoffor could be called upon to give to the feoffee other lands of equal value in case of a recovery by the demandant.^ But it seems that the warranty could also be used as a rebutter s^ainst the feoffor should he attempt to regain the lands. ' If the warrantor,' says Coke, ' should implead the warrantee, the latter (the tenant) might show the warranty and demand judgment whether contrary to the warranty the warrantor should be suffered to demand the thing warranted ; and this was called a rebutter.' ^ This use of the warranty directly against the warrantor was probably seldom called into requisition ; for it would not often happen that the lord would endeavor to regain possession in this way, knowing how vain (when he could not overawe the court) would be the attempt to enter an action at law against his tenant in the face of his own solemn conveyance. If dissat- isfied with his tenant, he would be more likely to resort to the rough but effective method of the times, an eviction vi et armis. But if the warranty was ever in fact used as a rebutter against the feoffor, it would seem to have been merely equivalent to setting up the conveyance against him and relying upon the livery of seisin. The word (dedi) relied upon as creating the implied warranty certainly possessed no inherent potency, as appears from the fact that in other kinds of alienation, as in the grant and bargain and sale where the words ' dedi et concessi ' are also the operative terms, ' dedi ' has never imported a war- ranty. Indeed, the only reason why it was deemed necessary to fix a warranty inseparably upon the particular gift containing the words ' dedi et concessi ' was because that gift was the gift of a fief, and without the fief the relation which was entered 1 Touchstone, 181, note ; 2 Black. Com. 800. * Coke, Litt 265 a ; Touchstone, 182. SECT. T.] TITLE BY ESTOPPEL. 417 into between feoffor and feofifee, that of lord and vassal, could not endure. When, therefore, feoffors bethought themselves, by omitting a clause of warranty, to escape the consequences of a disseisin of the feoffees, Parliament took action of a special nature, applicable only to the feoffment, and established the implied warranty under consideration.^ It follows that the passing of future interests to the feoffee did not arise by force of the warranty unless that term, when used in a contest between the feoffor and the feoffee, was simply an expression of the effect of the livery. We apprehend that, if ever used in mch cases where the contest related to the pass- ing to the feoffee of after-acquired interests, this was the extent of its signification ; that it expressed nothing of itself, and that its use was unnecessary. To say, then, that future interests passed by force of the warranty is only to say that they passed by force of the livery of seisin. If this is true, no argument can be based upon the operation of the feoffment warranty to show the effect of a warranty in our modern conveyances.^ The fine also had the effect of passing future interests.^ The highest form of it (sur cognizance de droit come ceo) was indeed only an acknowledgment of record of a feoffment made ; though it did not in all respects possess the efficacy of a feoffment.^ But the form of fine above mentioned had in some particulars even greater potency than the actual livery of seisin, of which it was an admission by the tenant ; for it was always levied with proclamations,^ and from this circumstance bound not only par- ties and privies, but strangers also, if they failed to put in their claims within the time allowed by law. It was in reference to this property of a fine that rights were said to be barred by fine and non-claim.^ This particular fine also operated to bar estates ^ St. de bigamiB, 4 Edw. 1, c. 6 ^ See also the consideration of the (a. d. 1276). Writers from Coke down common-law warranty in 2 Smith's L. have spoken of this statute as though C. 731, 6th Am. ed. the warranty was raised by reason of * Doe d. Christmas v. Oliver, 10 the words, *dedi et concessi.' These Bam. & C. 181; Weale v. Lower, Pol- words are merely descriptive of the con- lezf. 66. veyance intended, to wit, a feoffment. ^ See Touchstone, 203. The warranty was annexed because a > 1 Spence, Equity, 164. fief was given. * 1 Stephen's Com. 564, 565. The 27 418 ESTOPPEL BT DEED. [CHAP. ZI. tail,^ and therefore had the further tortious effect of a feoffment in displacing remainders and reversions ; ^ and it was also used to pass the estates and bar the rights of married women. But this last operation appears not to have been tortious, since it was preceded by a private examination of the wife.' Spence, however, says that the fine sur concessit — which was employed where the cognizor, in order to make an end of dis- putes, though he acknowledged no precedent right, yet granted to the cognizee an estate de novo by way of supposed compo- sition * — was usually resorted to in order to bind by way of estoppel the contingent, or executory, or other estates and inter- ests of married women.^ And in the same connection he speaks of fines generally as operating by way of estoppel, which might include their operation upon after-acquired interests. We find no suggestion in the books that this effect of the fine in passing future estates arose otherwise than by virtue of the conveyance itself; and as the fine most commonly in use (that first mentioned) was simply a feoffment of record, it is but reasonable to presume that its operation by way of estoppel was tiie same as that of a feoffment. It was an acknowledgment in court on the part of the tenant that he had made livery of seisin to the cognizee ; that is, that he had had possession of a freehold estate, and had delivered it to the cognizee; and he and his privies were precluded by the record from disputing the feict. Seisin in the cognizor was always essential to create a life estate or a fea If a tenant for years, for example, levied the fine without having previously created a freehold by disseisin, it could be avoided by pleading 'partes finis nihil habuerunt' ^ The effect of a common recovery was to pass to the recovers an estate in fee simple absolute, and thereby to bar not only the estate of the tenant in tail, who suffered it, but all remainders and reversions expectant thereon, and all executory limitations and conditions to which the estate tail had been subject.^ But references to this valaable work are ^1 Stephen's Com. 563. uniformly to the 7th edition. * Ibid. ^ 1 Spence, nt sapra. * 2 Sanders, Uses, 15. * 1 Stephen's Com. 566. ^ 1 Stephen's Com. 578; 1 * 1 Spenoe, Equity, 165. Equity, 165. SECT. T.] TITLE B7 ESTOPPEL. 419 it was necessary in every case of a recovery, following the rules which governed real actions, that the person against whom the action was brought should be actually seised of the freehold, otherwise the recovery was void.^ The same result must then have followed as in the case of a feoffment If the tenant were a disseisor, as in the case of the presumptive heir disseising the ancestor in tail, he had a freehold estate ; and this the demand- ant recovered. And when the title descended, it passed of neces- sity to the recoveror ; for the tenant could not enter upon him contrary to his conveyance so as to enfeoff another, or to suffer a fine or another recovery. And an attempt to alien the interest by bargain and sale, grant, or release, would be futile, for the same reason that prevailed where a feoffment had been made. Ck>ncerning this method of assurance also we fail to find any the slightest evidence that the ' transcendent effect of estoppel ' was anything else than the operation of the assurance itself in X its very nature. A lease for life, like a feoffment, required livery of seisin ; and livery in this case equally operated of necessity to give a freehold to the lessee. The conveyance was in fact in its original a feoffment, the estate for life in feudal times being, commonly at least, a fief.^ ' These estates for life are, like in- heritances, of a feudal nature, and were for some time the high- est estate that any man could have in a feud, for this was not in its original hereditary. They were accordingly originally conferred with the same feudal solemnities, the same investiture or livery of seisin, as fees themselves.' * This method of assur- ance may therefore be passed over as already explained in its effects upon after-acquired interests in what has been said con- cerning the feoffment. It remains to consider the • case of a demise of an estate for years. This being less than a freehold interest did not require livery of seisin ; * and livery was never made except when the ^ 3 Sanders, Uses, 15; 1 Spence, ib. 172-174, where the feud is more Equity, 165. fully explained. * 1 Stephen's Com. 512. * 1 Stephen's Com. 512. * 1 Stephen's Com. 254. See also 420 ESTOPPEL BT DEED. [CHAP. XI. alienor conveyed with the estate for years the remainder to another.^ And though the livery in such a case was made to the tenant of the particular estate, it was not made for his benefit ; it was for the benefit of the remainder-man, inuring to him and creating and vesting in him the freehold during the continuance of the term for years.^ The tenant was considered, and is still considered, as having possession, but not seisin.' The operation of a lease in respect of the rule of estoppel was and still is peculiar ; the rule at law being that where an in- terest passes by the lease, no estoppel arises concerning after- acquired estates, and the converse where no interest passes^ Thus, in the example given by Coke, as last cited. A, lessee for the life of 6, makes a lease for years by deed indented, and after- wards purchases the reversion in fee ; B dieth ; A shall avoid his own lease, for he may confess and avoid the lease which took effect in point of interest, and determined by the death of B. This, of course, could only occur where the term demised is greater than the estate owned by the lessor ; and the reason of it seems to be that the lessor, becoming assignee of the rever- sion, stands in the shoes of the assignor, who could not be bound by the lease for the excess. However, in equity the lessor upon acquiring an interest equal to that demised will be bound, if the lease was founded on a valuable consideration, to give effect and confirmation to the demise by way of grant- ing a further assurance.^ In order, then, to show the operation of the lease upon after^ acquired interests, we must suppose that the lessor had no interest at all when the demise was executed. That the lease in such cases has always possessed the efficacy of passing the new estate as soon as acquired is clear. Thus, Mr. Preston, speaking of the old common-law assurances, says: 'An inden- ture of lease, or a fine sur concessit, for years, operates at first by way of estoppel, and finally when the grantor acquires an ownership, it attaches the seisin and creates an interest, or 1 1 Stephen's Com. 612 ; Coke, litt Seaton, 2 Crorap. M. & R. 728 ; Webb 14S a. V. Aastin, 7 Man. & G. 701 ; ante, pp^ > Coke, Litt 49 a, 49 b. 882, 888. • 8 Washb. Keal Prop. 498. * 2'Pre8ton, Abstracts, 817. * Coke, Litt. 47 b; Doe d. Strode v. SECT. T.] TITLE BT ESTOPPEL. 421 produces the relation of landlord and tenant The term com- mences by estoppel, bat the after-acquired interest renders it for all purposes an estate ; and it binds the lessor, bis heirs avd assigns, and the lessee and his assignees/ ^ So in the example put in the case of Trevivan v, Lawrance,^ which may be con- sidered as representing the modern law, if a man make a lease by indenture of D, in which he hath nothing, and afterwards purchases D in fee, and suffers it to descend to his heir, or bar- gains and sells it to A, the heir or A shall be bound by this estoppel. In Bacon's Abridgment there is a still stronger ex- ample to the effect that the acquisition of title by the lessor will avail the lessee for years, even against a subsequent feoffee of the lessor.' The explanation of this property of the lease seems (apart from the operation of the registry laws) to be found in the fact of the possession of the lessee. Possession is notice of an inter- est the nature or extent of which a purchaser is bound to ascer- tain.^ The purchaser therefore' cannot, on the strength of an after-acquired title of the lessor which he (the purchaser) now sets up against the lessee, claim the right to eject the lessee.^ Now, there cannot be a perfect tenancy without actual posses- sion,^ but there may be a perfect grant by mere passing of title 1 2 PrestoD, Abstracts, 210. sale from taking effect as against the * 1 Salk. 276 ; s. c. 6 Mod. 258 ; 2 term. The lessor, while able to convey Ld. Raym. 1036. the reversion without having possession, * Leases, 0. See also Webb v. Ans- could not convey with it the particular tin, 7 Man. & G. 701. estate against the tenant's wiU. He « See 1 Bigelow, Law of Fraad, 890- conld, in other words, convey his seisin 893. (which of course was not parted with » A more elaborate explanation was by the lease for years), but he could given in the second edition of this work, not convey seisin and possession with- which, however, amounted to much the out having possession. The lease would same thing as the one just given. In therefore stand. substance it was this : 1. The lease is • Coke, Litt. 270 a ; 1 Stephen's without effect until possession is taken Com. 513. It is sometimes said that under it. 2. After possession taken by under the Statute of Uses an entry of the lessee the lessor is in no situation the lessee of a term is not necessary, to give effect to an estate afterwards the statute transferring the possession acquired to a subsequent purchaser, to the use. Touchstone, 267, note «. without the consent of the tenant The But this, if intended as a universal tenant's refusal to be cut off would con- proposition, seems to be inaccurate, stitute him an adverse holder in respect Estates less than a freehold are not of the term ; which would prevent the embraced within the statute, and re- 422 B8T0PPEL BT DEBD. [CHAP* ZI. deeds. Hence the case of the lease does not necessarily cany with it ordinary grants. The estoppel upon the lessor's assign is founded upon notice, not upon any notion of privity between the lessor and the purchaser from him. Privity in estoppel, it cannot be too strongly laid down, is a different thing from priv- ity in contract. The position of privy in contract is one of mutiuil relation, as between contractor and contractee, and can* not be supported without a consideration, actual or (as in a deed) implied The question, then, of privity in such a case, supposing the existence of a consideration, is the question whether the supposed privy may be treated as party to the con- tract Privity in estoppel, on the other hand, is purely a rela* tion of succession or subordination of rights, and is inconsistent with consideration, or at least independent of it The heir is the type of a privy in the law of estoppel He is bound because he takes without value. It is right ttiat he should be bound ; no injustice is done him. Purchase for value without notice cuts away equitable claims, and even legal claims (e. g. actions for breach of contract) which do not amount to estates. Privity is wanting, and notice is excluded. If in the case in question the lessee were not in possession, one who purchased of the lessor main as they stood before. 8 Washb. pass or ejectment. Bat why not, if Real Prop. S78. The statute carries the statute gives him direct possession ! the possession of present freehold es- His right would not be an interesse tates to the grantee (cestui que use) termini at all, if the editor be correct by declaring that the mnn shall pass (and this he himself suggests), but an to him, and in no other way ; and if an estate in possession. That there is no interest less than a freehold be aliened, transfer of possession in such a case is the possession does not pass since the stated in Coke, Litt. 270 a. 'Before seisin remains in the grantor. In the entry,' says Coke, 'the lessee has but first case there was at common law a interesse termini, an interest of a term, livery of seisin, which was of course a and no possession.' There is one case, delivery of the possession and the free- however, where the statute does transfer hold ; in the latter there never was the possession to a lessee ; but that is livery, and the consequence is that the the case of a lease followed by a release possession as well as seisin remains in of the reversion. In that case if the the alienor, and that an entry is neces- lessee should not enter under the lease, sary to give the tenant a possession, both the seisin and the possession would And the editor of the Touchstone, un- remain in the lessor ; and upon ezecut- less his remark is limited, is inconsist- ing a release the statute would execute ent with himself; for in the same note the use by transferring the seisin, and he says that a person having only an with it of ooone the poaseggion. inter^ae termini cannot msintftin tres- SECT, v.] TITLE BT ESTOPPEL. 428 for value would take the estate firee from the olaima of the lessee unless he had notice in some other way. Of the other common-law assurances, none have had the effi- cacy before or since the Statute of Uses, even with warranty, of transmitting future estates in any other sense than that in wbich the lease has been seen to operate. Tbe only assurances that need be considered are the release, lease and release, grant, and bargain and sale ; the rest being of a character never to raise a question of this kind. The purpose of the release was to efifect a conveyance of an ulterior interest in lands or tenements to a particular tenant, or of an undivided share therein to a co-tenant, or of the right to such lands or tenements to a person wrongfully in possession thereof. If the releasor had nothing to release, the release was void, even though, as it seems, it was accompanied with a war- ranty. In other cases of warranty, and solely by reason of the warranty,^ the releasor was precluded from setting up an after- acquired interest ; but there was this in the nature of the situa- tion to prevent him from conveying the new estate to another, to wit, that the releasee's being in possession would (as in the ordinary case of a lease) fix upon others notice of his rights. What has been said of the release is equally applicable to the assurance by way of lease and release. It gave no additional efficacy to this mode of conveyance that it was of a double char- acter. The lease was usually a bargain and sale for a year or some other short term ; and the release that followed was the instrument already described. It was void if the releasor had no estate ; and it was void, though he had an estate, if the lessee had not entered.^ Nor would it have changed the case had the releasor added a warranty, since a waiTanty at common law was void without an estate.' There was no livery of seisin connected with the conveyance; and it never had a tortious operation. Vice-Chancellor Leach, it is true, in one well-known ^ Because at common law the war- ' Coke, Litt. 270 a; 1 Stephen's ranty required an estate to support it. Com. 519. Rawle, Covenants, 413, 4th ecL * Rawle, Covenants, 41 S, 4th ed. ; Sejmor's Case, 10 Coke, 96. 424 ESTOPPEL BT DEED. [CHAP. XI. instance,^ declared . that a conveyance by lease and release of itself alone worked an estoppel ; but the only question before him was whether there was an estoppel against the releasor and by consequence against a purchaser with notice, which is not the question now under consideration. In point of fact there was a specific recital of title in the release, and upon this ground the ruling upon the existence of an estoppel was affirmed by the Lord Chancellor.^ The opinion of the Vice-Chancellor, it may be added, that a deed of release of itself estopped the releasor from claiming an after-acquired estate was soon after impugned and overruled.* The estoppel will not arise for such purpose unless there be a specific recital of a definite estate, as the cases just cited show;^ and this too, as it seems, though there be a warranty in common form. The effect of the deed seems there- fore much the same as that of a conveyance of right, title, and interest as understood in Massachusetts and Maine.^ The common-law grant was employed for conveying rever- sions and remainders and incorporeal hereditaments, such as advowsons, rents, and the like.^ There is no suggestion that it was ever used for any other purpose. Livery of seisin was of course inapplicable to it;^ and it results that it could never pass more than the interest which the grantor had. Jt never worked a discontinuance when made by a tenant in tail of an advowson, common, remainder, or any other inheritance lying in grant.® So too the grant of a rent-charge out of lands of which the grantor was not seised at the time of the grant was void, though the grantor afterwards purchased the same lands.^ The last of the common-law assurances to be noticed, that by bargain and sale, needs a more particular examination ; for that 1 Bensley v. Buidon, 2 Sim. & S. 619. * Ante, pp. 402-405. > 8 L. J. Ch. 85. * 1 Stephen's Com. 510, 511 ; 2 San- * Right V, Bucknell, 2 Barn. & Ad. den, Uses, 25. 278; Lloyd v, Lloyd, 4 .Dru. k War. ' Stephen's Com. 510, 511 ; 2 San- 869 ; General Finance Co. v. Liberator ders, Uses, 25. Soc., 10 Ch. D. 15, 22. * 2 Sanders, Uses, 41 ; Coke, Litt * See also Heath v. Crealock, L. R. S32. 10 Ch. 80 ; Crofts v. Middleton, 2 Kay * 2 Sanders, Uses, 28. & J. 194. SECT, y.] TITLE BT ESTOPPEL. 426 has come down to modem times, possessed of the same charac- teristics as distinguished it before the time of Henry YIIL, modified only by the Statute of Uses. This conveyance originated from an equitable construction adopted by the Court of Chancery. A bargain was made or a contract entered into for the sale of an estate, and the purchase- money paid ; but there was either no conveyance at all of the legal estate, or a conveyance defective at law by reason of the omission of livery of seisin, or (when the reversion or remainder was aliened) of attornment. Such was the situation before the Statute of Uses. The Court of Chancery, however, rightfully thought the estate ought in conscience to belong to the person who paid the money, and therefore considered the bargainor or contractor as a trustee for him.^ An equitable interest in land thus raised in the first instance by the payment of money upon a mere contract, or upon a conveyance inoperative at law, be- came i]> process of time transferable by a foripal conveyance under the name of a bargain and sale.^ Courts of law in no respect recognized this conveyance, or the claim of the bargainee under it.^ The only redress the bar- gainee had for a failure on the part of the bargainor to perform the duties of his trust was through the Court of Chancery ; and even her» the relief was often inadequate, as where the bar- gainor was afterwards disseised by another.^ This was not, however, peculiar to conveyances by bargain and sale ; it was equally true of all conveyances to uses.^ The trust thus* raised was called a use ; and this is defined to be the right in one person, the cestui que use, to take the profits of land of which another has the legal title and possession, coupled with the duty of defending the same, and of making estates thereof according to the direction of the cestui que use.^ It will be observed that the definition requires of the holder of the legal estate possession of the land, and with good reason ; ^ 2 Sanders, Uses, 43 ; 1 Spence, * 1 Spence, Equity, 445 ; 2 Washb. Equity, 452 ; 2 Washb. Beal Prop. Real Prop. 860. 292. • Ibid. « Ibid. • Tudor's Lead. Cas. 252 ; Chud- > 1 Spence, Equity, 442 ; 2 Washb. leigh's Case, 1 Coke, 121 ; 2 Washb. Beal Prop. 860. Real Prop. 858. 426 B8T0PPEL BY DEED. [CHAP. XI. for how could a UBe» i. e. a beneficial enjoyment, be granted where the bargainor had himself no enjoyment of the land ? A bargainor of a present estate of freehold when out of possession could not then create a use against the consent of the tenant ; and there was, therefore, nothing for even the Court of Chancery to take cognizance of in such a case. That this is true appears abundantly from the chapter on Bargain and Sale in Sanders.* ' There must be a use,' he says, 'and a seisin to serve it, in every bargain and sale.'^ And on the following page : * All corporeal hereditaments of which the bargainor has a seisin, and all incorporeal hereditaments in actual existence, may be conveyed by bargain and sale, because they may be limited to uses.* Now, it would seem to make no difference whether the bar- gaiuor owned the premises and had been disseised, or had no title at all ; for in either case having no seisin, there could be nothing upon which to raise a use. If, then, he should after- wards acquire in the one case the seisin, or in the other the title and seisin, he could convey again by bargain and sale ; and the second grantee, if he were a bona fide purchaser, would acquire the right to protection in chancery against the first grantee. But if the bargainor had seisin, though as a disseisor, a use would at once arise upon the contract, and the bargainee would come within the protection of chancery as cestui que use. Still, since the bargainee's interest was not regarded at law, the bar- gainor, in whom the seisin was held to remain, could make liv- ery before or after title acquired to one having no notice of the previous bargain and sale; and this alienee would hold the premises both at law and in equity.' Upon this point the Stat- ute of Uses has effected a radical change, as will be seen later. In short, the bargain and sale at common law was one of the 'innocent conveyances' of the law, operating merely upon what the grantor might lawfully convey. It could not work a dis- continuance, create a forfeiture, or destroy contingent remainders dependent upon particular estates.^ 1 2 Banders, Uses, 4S-59. • 1 Spence, Equity, 446. * Page 60. « 2 Sanders, Uses, 54. SfiCT. v.] TITLE BT ESTOPPEL. 42T A bargam and sale for a term of years, bowever, had a dif* ferent efifect, since this was a lease. Such a conveyance, as it did not create a trast and confidence repugnant to the owner- ship of the legal estate, was upheld at law ; and the lessee was considered on entry to have the possession, and could maintain trespass or ejectment in case of an ouster. A bargainee was therefore safer in taking the conveyance of a term than one of the fee. It seems clear that a clause of warranty could not change the effect of the conveyance so as to cause future interests to pass directly to the use of the bargainee, even when the bargainor had possession ; for in any view it must have been very different in character from the warranty of the feoffment That war- ranty, as we have attempted to show, was, when applied be- tween feoffor and feoffee, simply an expression of the necessary effect of the feoffment itself. It derived its potency from the peculiar nature of the assurance. But a bargain and sale before the Statute of Uses was an imbecile assurance at law, creating as it did a trust which was regarded as wholly repugnant to legal notions and void; and it can scarcely be conceived that the addition of a warranty could give it standing. * The cestui que trust [use],' says Spence, ' having, as it was held, neither jus in re nor jus ad rem, there was no form of action at the common law which could possibly have afforded any remedy, either as regards the land or the profits. If the law bad interfered at all, it could only have been by giving a personal remedy for a breach of the confidence reposed,' ^ which confidence, he says in the same connection, was wholly repugnant to common-law principles. It seems equally clear that a warranty could be of no service in chancery ; for that court proceeded entirely upon the principle that he who paid for the estate should have the use of it, as he was in equity and good conscience entitled. A warranty could have added nothing to the right in this view ; and there is nothing in the books to show that the Court of Chancery took any notice of it, if indeed a warranty was ever employed in this kind of conveyance before the Statute of Uses. When the bargainor had an estate, chancery upheld the trust ^ 1 Spenoe, Equity, 448. 428 ESTOPPEL BT DEED. [CHAP. XI. without a warranty ; if he had none, the warranty itself was void.* This view of the operation of the common-law assurances shows that possession and seisin in an alienor who had no title were always essential in order to save the alienee harmless from a second conveyance made on title acquired, and that in one case, that of the bargain and sale, not even these (except in estates for years) were sufficient ; that form of conveyance being totally inadequate at law to pass title to estates in possession, though the bargainor had a complete title and right to convey. We turn now to conveyances under the Statute of Uses. That statute dispensed with the necessity of livery of seisin by pro- viding that he to whose use another was seised should be con- sidered as the legal owner of the estate ; so that the interests of cestuis que use now became legal estates, and commanded full recognition from the common-law courts. Under this statute feofTmeuts became more and more infrequent^ and finally obso- lete ; and fines and common recoveries, having been abolished in England and never having gained a strong foothold in this country, are now unknown. In the further consideration of the effect of the Statute of Uses upon the doctrine of title by estoppel, the bargain and sale may be selected for examination as containing the essence and potency of all existing modes of assurance. Now, it is safe to affirm as a preliminary step that none of our present convey- ances operate to pass future interests in any case by virtue of the conveyance ; ^ and that the only way in which such an ob- ject can be effected in the most favorable circumstances is by 1 Even since the sta^nte equity may, lawyer, said that if A sold land to B by it seems, sometimes decree a conveyance indenture, he thereby affirmed that he of the new interest though there was no had title when he made the deed, and warranty. Whitfield «. Fausset, 1 Ves. if he had not, but afterwards acquired 8r. 389 ; Wright v, Wright, ib. 409. one, the claim of B to it would prevail ^ See Heath v. Crealock, L. R. 10 against A, 'not because A passed to Ch. 80 ; General Finance Co. v, Libe- him any title by his deed, for he had rator Soc, 10 Ch. D. 15, 21, Jessel, none then to pass, but because A is pre- M. R. ; Moore v. Willis, 2 Hawks, eluded from showing the fact.' See 559. In the last-named case Henderson, Cuthrell v. Hawkins, 98 N. Gar. 208, J. a very able and learned common 205 ; infra, pp. 433 et seq. SECT, v.] TITLB BY ESTOPPEL. 429 the introduction of appropriate covenants of warranty or for further assurance, or of covenants of seisin and title, or of an express or implied recital of the nature of the interest owned and aliened. There are, indeed, many dicta of the courts, with a few express decisions, giving color to the idea that a deed of bargain and sale, with any of these additions of covenant or recital', always operates upon after-acquired interests so as to cause them to pass to the grantee as effectually as if the grantor had had title when he executed his deed. Mr. Bawle, in h^ valuable work on Covenants, makes a very broad and just im- peachment of our courts upon this point, and says that in most of the states it is held that the presence of a covenant of general warranty in a conveyance will not only estop the grantor and his heirs from setting up an after-acquired title, but will, by force of the covenant, have the effect of actually transferring the new estate in the same manner as if it had originally passed by the deed ; and he cites a cloud of cases for the statement.^ Few of the cases, however, required any decision of this question ; and the statements of the courts are for the greater part mere generalities, having reference to the relation of grantor and grantee or their real priviea In Somes v. Skinner* Chief Justice Parker, after referring to several of the early authorities, says : ' The general principle to be deduced from all these authorities is that an instrument which legally creates an estoppel to a party undertaking to con- vey real estate, he having nothing in the estate at the time of the conveyance, but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor.' Now this can scarcely be considered a dictum, for the ques- tion required a solution of the state of the title, the point not arising between grantor and grantee. But the defendant was only a trespasser (asserting no legal claim to the particular locus), and not a subsequent purchaser without notice. And the learned Chief Justice immediately says: ' It would be but a feeble title which would not enable the holder to defend his 1 Rawle, Covenantfl, 404, 4th ed. < 8 Pick. 52; (M. 4S0 ESTOPPEL BT DEED. [CHAP. ZI. possession against trespassers or those who should attempt to disseise him after his tide is established.' Whether the court intended to narrow the foregoing statement of the authorities to the facts of the case does not clearly appear ; but this at all events was done in a subsequent case, ^ where Mr. Justice Thomas said : ' An examination of the whole opinion in that case [Somes v. Skinner] would lead us to infer that this statement was not made without some misgiving aud distrust. The pi^cise question now under consideration was not before the court, and what in that part of the case was decided was that where a title has inured by estoppel it will avail the grantee, not only against the grantor and his heirs, but strangers who usurp possession without right ; and under the facts of the case, and in the view in which it was applied, there is no occasion to recon- sider the rule there stated.' It is to be observed also that the authorities from which the Chief Justice in Somes v. Skinner deduces his general principle are the old ones relating to feoff- ments and fines, which have always been conceded to pass future interests. In Bean v, Welsh' a question arose similar to that in Somes V. Skinner. The plaintiff in trespass to try title relied upon a title by estoppel against her grantor, who had conveyed to her with warranty, and before the present suit had acquired the ownership. The defendant was a stranger, setting up no title but relying upon the plaintiff's want of any. The plaintiff re- covered. The court indeed used broad language upon the point of estoppel. ' We think,' it was said, ' the principle is well settled that an estoppel will not only bar a right or title, but will pass one to him in whose favor the estoppel works.' But this propo- sition is narrowed to the facts of the case, for the court proceeds at once to say : ' If indeed an estoppel could not operate as a conveyance, or as a medium through which the title would pass to him in whose favor the estoppel works, we might frequently lock up the title in him and his heirs against whom the estoppel operated, and the party for whose benefit it was intended might find himself without title and unable to recover from a mere intruder ; for if the title to the after-acquired estate did not pass 1 Blanchard v, Ellis, 1 Gray, 195, 201. * 17 Ala. 770. SECT, v.] TITLE BY ESTOPPEL. 481 to the grantee by means of the estoppel, but it only precluded the grantee from asserting an after-acquired title, it would be difiScult to see how he could recover in ejectment from one who had no title. To show title in another would not enable him to recover ; and he, having none, could not maintain the suit. To give, therefore, the full effect to an estoppel it is clear that it must frequerUly operate to pass the title/ In Cole V. Raymond ^ Chief Justice Shaw says : ' It is a well- established rule of law that although a deed as a present convey- ance transfers only the title which the grantor then has, yet if it is a deed in fee with warranty, it has a further operation as a covenant real running with the land, by which the grantor and his heirs are bound to make it good ; so that if the grantor has no good and sufficient title to the estate, yet if he or they after- wards acquire a good title, it forthwith inures to the benefit of the grantee to the same extent as if the grantor and warrantcnr had had the same good title at the date of the grant and war- ranty, to operate by way of estoppel if the action be brought in such a form that it may be pleaded by way of estoppel ; other- wise by way of rebuttal to the claim of any one bound by such warranty.* * This was said in a contest between the grantee before title and a purchaser after title, and seems therefore to be an express decision that there is an actual transmission of the after-acquired estata But the case of Blanchard v. Ellis, supra, was not cited by counsel or mentioned by the court ; and it is not to be sup- posed' that it was intended to overrule that well-reasoned casa And it would seem that Cole v. Baymond might be supported upon other grounds than those assumed. The grantor being seised of a life estate in the premises, conveyed them in fee to the defendants, who apparently went into possession ; and they thus acquired a legal estate under the Statute of Uses. The second conveyance was made by the son of the first grantor ^ 9 Graji 217, 218. tion of reimbursing the first grantee in * If the second grantee himself ao- the amoant of his outlay ; and this quire the new title from another source though the second grantee took with than his own estopped grantor, he wiU notice. Smith «. Hitchcock, ISO Mass. be allowed, it seems, even in Massa- 570. ckusetts to keep the land upon condi* 432 ESTOPPEL BY DEED. [CHAP. XI. after the latter's death, the son having now acquired title in fee by descent from his mother ; but the son had by express obliga- tion taken upon himself the father's warranty. Now, as the son had no possession, his conveyance to Cole (the plaintiff) would be void under the champerty acts, the land being at the time in the adverse possession of the respondents. And Cole could not set up his claim in the name of the son, for the son having as- sumed his father's warranty was estopped It was not necessary, therefore, to hold that the after-fu^quired title had actually passed to the defendants.^ However, the Supreme Court of Massachu- setts has recently reaffirmed the doctrine under criticism, declar- ing it to be settled in that state that the estoppel prevails against the second grantee as well as against his grantor.^ There are other cases which hold the same doctrine, and in even stronger terms ; ' especially Jarvis v. Aikens, which also was a contest between the first grantee and a purchaser after title acquired. But this case, besides arising under the recording acts, was decided partly upon the authority of Trevivan v, Lawrance, the case of the lease already considered, and partly upon other early cases which were decided upon the common- law doctrine of estoppel. The doctrine of the court in Douglass V. Scott * was also referred to with approval, where it was said : ' The obligation created by estoppel not only binds the party making it but all persons privy to him ; the legal representatives of the party, those who stand in his situation by act of law, and all who take his estate by contract, stand in his stead and are subjected to all the consequences which accrue to him. It ad- heres to the land, is transmitted with the estate ; it becomes a muniment of title, and all who afterwards acquire the title take it subject to the burden which the existence of the fact imposes ^ In regard to Cole t7. Raymond, see senting) ; McCusker o. McErey, 9 R. I. Ritss V. Alpaugh, 118 Mass. 869. 525. Dissenting opinion of Potter, J. * Knight V. Thayer, 125 Mass. 25, in 10 R. I. 606. In all of these cases, citing Somes v. Skinner, supra ; White however, the question arose under the v. Patten, 24 Pick. 324 ; Russ v, Al- recording acts. See also McCarthy v. paugh, 118 Mass. 869, 376. Mann, 19 Wall. 20, under an act of ' Jarvis v. Aikens, 25 Vt. 635 ; Doe Congress, d. Potts V. Dowdall, 8 Houst. 369 ; Tifft « 5 Ohio^ 198. V. Munson, 57 N. Y. 97 (two judges dis- SECT, v.] TITLE BT ESTOPPEL. 433 upon it' ^ Upon which it is to be observed that if this expres- sion of opinion was intended to cover more than the case before the court, it was soon afterwards disapproved in Buckiughain t;. Hanna, ^ where, referring to Douglass v. Scott and other cases, it is said : ' The import of the language in these cases is certainly unmistakable. It supposes the after-acquired title to pass froui the grantor to his heirs or assigns, but still conclusively bound by the estoppel' We shall endeavor to show presently that the assigns, when purchasers without notice, come in, not as privies under the grantor, but with adverse riglits, and that when put iuto possession by the grantor they cannot be disturbed by the first grantee. Cases are not wanting in which the doctrine of the trans- uiissLon of the new interest is denied.' The Supreme Court of Ohio has denied it in Buckingham v. Hanna.^ One Barney mortgaged with warranty land to which he had no title, and subsequently obtained a patent for the land. It appears that one Eveland, under whom the defendant claimed, had an equi- table title prior to the mortgage of Bamey, and that he had afterwards obtained a decree that the patent should be con- side]*ed as obtained in trust for him, Eveland, and that a legal conveyance should be made by Bamey. These proceedings were put in evidence in an ejectment by Bamey's mortgagee against Eveland's grantee. Now, it was claimed for the plaintiff that when Bamey became invested with the legal title by patent from the government, that title instantly passed to the mortgagee by force of the waiTanty, and that there was consequently no title remaining in Bamey upon which the decree afterwards obtained by Eveland could operate. But the court in an able opinion ruled otherwise. However, the point was not considered material in the case, since Eveland had claimed by an equitable title paramount to that of Bamey, and anterior to the date of the mortgage. One of the grounds taken by the court was that if the title 1 See also Bank of Utica i*. Merse- M. R.; Salisbury Sav. Soc. i?. Cutting, rean, 3 Barb. Ch. 568. 50 Conn. 113 (where the question was > 2 Ohio St. 551. not decided) ; Robinson v, Douthit, 64 * S •(! General Finance Co. v. Lib- Texas, 101, 106 (qaeetion not decided). •rator Soc, 10 Ch. D. 15, 24, Jessel, « 2 Ohio St. 651. 2S 434 ESTOPPEL BY DEED. [CHAP. XI. passed in such cases as soon as acquired, the grantee could not recover on his covenant of warranty ; and this brings us to Blanchard v. Ellis,^ already mentioned. There it was decided that though upon eviction of a grantee his grantor (who had conveyed with warranty) had acquired a paramount title to. the premises, this would not prevent the grantee from maintaining an action on the covenant against encumbmnces and recovering the amount paid for the land, with interest. * Strictly speaking,' said Mr. Justice Thomas, ' there would seem to be no trans- mutation of estate when the new title comes to the grantor. Nor is there any force in the original deed to convey a title not then existing in the gmntor ; for nothing can pass but his then existing title. But the grantor and those claiming under him are estopped to deny the validity of the title which he has solemnly asserted, and to set up a title against it. The law presumes that he has spoken and acted according to the truth of the case, and will not permit him, or those claiming under him, to deny it . . . It might be curious to trace the progress of this doctrine of estoppel as applicable to the covenant of war- ranty from the simple rebutter of Lord Coke,* which should bar a future right to avoid a circuity of action, to its present condi- tion, in which there is claimed for it the full force of a feofTment, or fine, or common recovery at the common law ; that is, having the function of actually divesting the feoffor or conusor of any estate which he might thereafter acquire.^ But waiving, because not necessary to our purpose, the discussion- of the origin and extent of the doctrine of estoppel, it will be sufficient to say that we do not feel called upon to extend its application. . . . Supposing it to be well settled that if a new title come to the grantor before the eviction of his grantee, it would inure to him, and not deciding, because the case does not require it, whether the grantee even after eviction might elect to take such new title, and the grantor be estopped to deny it, we place the deci- sion of this case on this precise ground, ^~ that where a deed of ^ 1 Gray, 195. the laDt very strongly against the notion * Coke, Litt. 265 a. that the covenant of warranty, however * The writer f>er8onal1y knows that broad, could have the effect of actaally the opinion of this able judge was to transmitting an estate. SECT, v.] TITLE BY ESTOPPEL. 485 land haa been made with covenants of warranty, and the grantee has been wholly evicted from the premises by a title paramount, the grantor cannot after such entire eviction of the grantee purchase the title paramount, and compel the grantee to take the same against his will, either in satisfaction of the covenant against encumbrances, or in mitigation of damages for the breach of it.' ^ The point has been more directly decided in Pennsylvania. In Ghew v, Barnet* certain parties sold to James Wilson a large tract of land under articles by which he was to reconvey the same in mortgage, and agreed that they would have patents for the same taken out in his name. Before this agreement was performed Wilson conveyed the land with covenants of warranty and for further assurance to the plaintiff Chew. Afterwards the patents were conveyed to Wilson, who gave back a mortgage of. the lands as security for the purchase-money. The defendants claimed under this mortgage ; and the court in an action of ejectment by Chew decided in their favor. We quote from the opinion which was delivered by Mr. Justice Gibson, afterwards Chief Justice: ' What is the nature,' he asks, 'of the estate which Mr. Chew acquired by the conveyance from Judge [James] Wilson ? When that conveyance was executed, the legal title was in Jeremiah Parker by patents from the commonwealth ; and Judge Wilson, having nothing but an equitable title under the articles, could convey nothing more. His deed therefore passed to Mr. Chew only an equitable title. But it is said the subsequent conveyance from Jeremiah Parker to Judge Wilson inured to the benefit of Mr. Chew. It did so, but only in equity, and to entitle him to call for a conveyance fi*om Judge Wilson, and not as vesting the title in him of itself, as contended, by estoppel. The facts present the ordinary case of a conveyance before the grantor has acquired the title ; in which the convey* 1 See to the same effect Burton v. Contra, Reese v. Smith, 12 Mo. 344, a Reeds, 20 Ind. 87 ; Noonan v. Ilslej, remarkable case, in which the court 21 wis. 139 ; Innis v. Lyman, 62 Wis. compelled the grantee to take an after- 191 ; Niehol v. Alexander, 28 Wis. acquired title, and enjoined a judgment 118; Tucker v. Clarke, 2 Sandf. Ch. at law on the coyenants. Scott, J. dis- 96 ; Bingham v. Weiderwax, 1 Comst. sented. 609; Woods v. North, 6 Humph. 809. ^ 11 Sei^. & R. 889. 486 BBTOPPEL BY DfiElD. [CHAP. XI. ance operates as an agreement to convey, which when the titld has been subsequently acquired may be enforced in chancery. • • . But it is argued that as the deed to Mr. Chew contains a cove- nant for further assurance, it is to be considemd as a covenant to stand seised to the use of the grantee ; and consequently that the estate was executed in him as soon as the seisin arose out of which the use was to be served. It is true that no par- ticular form of words is essential to a conveyance to uses, but the deed, if it cannot operate in one way, may in another to effectuate the manifest intention of the grantor. But here thei'e is not a single feature of a covenant to stand seised, the con- sideration of which is always blood or marriage; nor is there any of a bai^in and sale, where the consideration is valuable : for in every conveyance to uses the covenantor or bargainor must be seised of the legal estate at the time, as the use must arise out of such seisin. In the case of a convevance before the grantor has acquired the title the legal estate it not transferred by the Statute of Uses; but the conveyance operates, as I have said, as an agreement which the gmutee is entitled to have executed in chancery, as was decided iii Whitfield V, Fausset/^ The court of Pennsylvania in Brown v, McCormick^ seems, however, to have restricted the doctrine of Chew v. Barnet to the position that the purchaser of an equitable title takes it subject to all the countervailing equities to which it was subject in the hands of the person from whom he purchased ; the equity in that case being a right against Wilson of security for the pur- chase-money, a right to a mortgage under the articles from which the first grantee could not escape.' And in the above-cited case of Brown r. McCormick the first grantee was prefen^d to the second ; but the first grantee was put into possession, which would be a sufficient reason for the decision. The same subject was considered in Jackson v, Bradford.* The premises had been conveyed to the defendant by one Price by deed with a covenant of non-claim. Price had at the time no title, but subsequently the title came to him by descent. 1 1 Ves. Sr. 891. * See also BeUas «. McCarty, 10 Watts, 26. « 6 Watti, 60. •4 Wend. 610. SgCT. v.] TITLE BY ESTOPPEL. 487 Tlie plaintiff claimed by virtue of a judgment and sheriff's sale of the land as the property of Price, after his father's death ; and his claim was sustained. Mr. Justice Marcy, who delivered the opinion, said : ' The judgment eo instanti the property descended became a lien upon it, and the title to it vested in the purchaser at the sheriff's sale, unless the operation of the deeds to tlie defendant prevented it. When these deeds were executed, Price had no title or claim to the premises, and could therefore convey Xko right to them. Qui non habet, ille non dat A grant by a person who has no estate, as an heir in the lifetime of his ances- tor, will not pass any estate.^ This position is well warranted by Sir Marmaduke Wivel's Case.' In that case a tenant in tail of an advowson, and his son and heir, joined in a grant of the next avoidance. The tenant in tail died ; and it was held that the grant was utterly void against the son and heir who had joined in the grant, because he had nothing in the advowson, either in possession or right, or actual possibility,^ at the time of the grant. It is said in the Touchstone ^ that a bare possibility of an interest, which is uncertain, is not grantable. The expec- tancy of an heir-at-law in the life of the ancestor (and such was the defendant's grantor in this case) is less than a possi- bility.^ ... It is very clear both from reason and authority that no title passes by the deed of an heir apparent or presumptive to lands that may afterwards descend to him on the death of his ancestor ; yet the heir may be barred by his deed from recovering such lands. Where the deed is by warranty, the warranty will rebut and bar the grantor and his heirs of a future right This is not because a title ever passes by such a grant, but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title to the soundness of which he must answer on his warranty.' The learned judge thought, however, that there was not even a rebutter in the case, on the ground that no action could be maintained upon a cove- nant of non-Kilaim. There are other cases which support this view, but they need not be set out^ 1 8 Preston, Abetracta, 25, 26. « Page 289. « Hob. 45. » Wright v. Wright, 1 Ves. Sr. ' See Lord Hardwicke's explanation 409. of this, 1 Ves. Sr. 891. * See Bivins v. Vinzant, 16 Ga. 521; 488 ESTOPPEL BY DEED. [CHAP. XI. In looking upon these authorities as standing upon sound principle it will not be necessary to cast discredit upon the modern covenant of wantinty (or that of seisin and title) as not an efficient instrument of rebutter. There is no doubt that the modern covenant may be employed to as good purpose against a grantor (for value) as could the old warranty of the feoff- ment. But that it has not the potency directly to transmit after-acquired interests can," we think, be satisfactorily shown. There is, however, as there was under the old warranty, a distinction between cases where the grantor having no title has a seisin (that is, by disseisin) and where he has not. We purpose to devote the remainder of this discussion to the con- sideration of these two situations, taking first the case of a warranty in a bargain and sale by one having neither title nor seisin. Such a case clearly is not within the Statute of Uses ; for there is no seisin out of which to serve a use. It is a familiar rule that to bring an estate within the operation of this statute it is necessary that three things should concur: first, a person seised to a use ; secondly^ a cestui que use in esse ; thirdly, a use in esse, either in possession, reversion, or remainder.^ It is essential that it should be an estate of which the grantor has or is entitled to have the seisin at the time of the grant ; and it is accordingly held that no use can be raised by a covenant to stand seised of land of which the covenantor is not at the time seised.^ So too it is said that if a joint tenant covenant to stand seised of the moiety of his companion after his death, it is void although the covenantor survive.^ After an extensive examination of the j^uthorities we have been unable to find any suggestion that the Statute of Uses operates upon interests acquired after the grant when the con- veyance was made by one having no title. It is distinctly laid down that there must be a seisin in esse, to pass simultaneously Way V. Arnold, 18 Ga. 181 ; Faircloth Crnise, Dig. 849 ; Tudor's Lead. Cas, V. Jordan, 18 Ga. 850 ; Jacocks v. 258 ; Crabb, Real Prop. § 1646. Gilliam, 3 Murph. 47 ; 8. c. 4 Hawks, ^ Ibid. ; Moore, 842 ; Croke, Eliz. 310 ; Dodd v. Williams, 8 Mo. App. 301 ; Sanders, Uses, 83. 278. * 2 RoUe, Abr. 790, pi. 9. 1 3 W«8hb. Real Prop. 876-880 ; 1 SECT, v.] TITLE BY ESTOPPEL. 489 with the use, in order to bring the conveyance within the terms of the statute.^ And the only instance in which a use is said to inure to another after a conveyance, and with it a seisiu, so as to constitute a legal estate under the statute, occurs in the case of springing and shifting uses. But as the examples all show, it is as essential to a conveyance containing such executory limita- tions that the grantor have himself a seisin out of which to serve the several uses as in other conveyances.^ And it is clear that a contingent use cannot be executed by the statute while the contingency remains suspended.' If the case supposed does not come within the statute, it must stand, apart from the warranty, as at common law. But we have seen that at common law a bargain and sale was void both at law and in equity without possession in one of the parties ; and that the presence of a warranty could not aid the c^se, since it would be void for want of an estate, and since equity pro- ceeded independently of the warranty. That is, at common law there would not even be a rebutter in such a case. It would probably be carrying the case too far to assert the same rule of such a conveyance at the 'present time. That the modern cove- nant of warranty is not to be confined in its operation within the narrow limits of the common-law warranty is universally conceded ; and there is no good reason in principle why the covenant should not now be as efficient without as with an estate. But we do not think that it could avail for anything more (aside from giving the grantee a right of action in case of a breach) than a rebutter to the grantor and those in priv- ity with him. ' Can you produce,' said a great judge to counsel in a recent case, ' any authority for the proposition that an es- toppel can be created by a covenant? ' And counsel could not.* 1 1 Cruise, Dig. 353. simple. ... So if the Umitation of a * See 2 Touchstone, 529, note ; 1 use be that after two years, or after the Spence, Equity, 483, 484, note. See death of John at Stiles, it shaU be to also the example given by Lord Hale, the use of J N in fee, the feoffor hath C. J. in Weale i;. Lower, PoUexf. 65 : the fee simple remaining in him until 'If a feoffment be made to the use of C this future use come in esse.' and his heirs after the death of A and * 1 Sanders, Uses, 231. H, this is no remainder, but a future ^ Jessel, M. R. in General Finance use, and the feoffee \a seised in fee Co. v. Liberator Soo., 10 Ch. D. 15, 18. 440 ESTOPPEL BY DEED. [CHAP. ZI. Warranty, even in its palmy days, when collateral as well as lineal waiTanty flourished in all its vigor, never possessed the power of conveyance.^ It was a well-established principle that it could not enlarge an estate, Jiaviug no tortious effect ; and therefore when employed in aid of a wrongful alienation, it operated only against the alienor and his representatives. It always took effect if at all in one of three ways, — by rebut- ter, voucher, or warrantia chartae. It cannot, we apprehend, do more now. If title could actually pass when subsequently ac- quired, by the mere use of a warranty or other covenant, it would often be in the power of an heir to defeat the claims of the creditors of the ancestor. A conveyance with warranty made before the ancestor's death would, if not proved covinous, bring about this result. There is no need of extending the power of a warranty ; it is sufficient for all proper purposes that it can be used effectively whenever the grantor or his privies attempt to defeat his expressed intention. Besides, if a cove* nant of warranty possessed such efficacy, it might well be asked. Why should the grantee in such a case be allowed to go into equity, and call for a further assurance from the grantor ? And what is meant when it is said in cases of admitted authority on this point that the original deed is an agreement to convey the after-acquired interest, which equity will enforce ? ' Again, how impotent a warranty is to pass an estate may be seen by the rule that a tenant in tail in remainder cannot, in the absence of statute, bar the entail or pass an estate by warranty deed ; no estoppel arises in such a case.' 24. Of course it was not intended to v. Wagner, IS Mo. 531 ; 2 Sugden, question the operation of a covenant by Vendors, 541. Bat see Bensley v. Bur- way of rebutter. don, 2 Sim. & S. 519 ; s. o. 8 L. J. ' See 2 Smith's L. 0 725,6th Am. Ch. 85, in which equity refused to ed. interfere as again.st a purchaser with * Whitfield V. Fausset, 1 Ves. Sr. notice of the estoppel. The better opin- 889 ; Wright v, Wright, ib. 409 ; Tay- ion, however, is in favor of exercittng lor V. Dabar, 1 Cas. in Cb. 274 ; Noel the jurisdiction in such cases. •. Bewley, 3 Sim. 103; Smith «. Baker, • Allen «. Ashley School Fund, 102 1 Younge & C. Ch. 223 ; Goodson v. Mass. 262. See Whittaker «. Whit- Beacham, 24 Ga. 154; McWiUiams v. toker, 99 Mass. 364; Hollands. Cmft, Nisly, 2 Serg. k R. 515 ; Chew n. Bar- 3 Gray, 162. Secus, of course, under net, 11 Serg. & R. 889; Steiner v. the statute, in the case of such deed by Baogman, 12 Penn. St 108 ; Chaavin tenant in tail in possession. BECT. v.] TITLE BY ESTOPPEL. 441 Some of the cases, however, stop short of asserting that the warranty operates as a conveyance, hut take a view scarcely less objectionable. Thus, the court of Ohio have said in Doug- lass V. Scott that the estoppel hy warranty ' adheres to the land, is transmitted with the estate ; it becomes a muniment of title, and all who afterwards acquire the title take it subject to the burden which the existence of the fact imposes upon it.' Now, it is apprehended that this is wholly at variance with the prin- ciple upon which burdens fall upon third persons ; for it is an elementary principle that a purchaser of land for value without notice takes it free from its latent burdens.^ Conveyances by bargain and sale not being accompanied by livery have never been of a nature to affect the world with notice of their existence, except under the enrolment and registry lawa Before the Eng- lish enrolment act they .were resorted to because they were secret* And Mr. Sawle declares that even under the American registry acts a grantee is not bound to take notice of a conveyance made by his grantor before he had a title.' There is the greatest force in this statement ; and it is apprehended that experienced conveyancers would agree in affirming its correctness. Besides, there is direct and sufficient authority for the doctrine.^ It may, however, be supposed from the analogy of the relation of feoffor and feoffee that there is privity between the second grantee and his grantor, by which the former is precluded from claiming the land ; and there is some color of authority for this position. Tl)us, in Bacon's Abridgment'^ it is said that the reason why the feoffee takes subject to the lease is that, coming in under one who is estopped, he shall himself be estopped ; and similar statements are sometimes made in cases of grantor and grantee.® 1 See Vredenburgh v, Baraet, 81 * Leases, O. N. J, £q. 229. • See Armstrong «. Wheeler, 52 * 1 Stephen's Cora. 634. Conn. 428. The true ground of this * Rawle, Covenants, 428, 4th ed. case was not privity, bat that the party * Dodd V. WiUiams, 3 Mo. App. 278; who owned the right in question owned State V. Bradish, 14 Mass. 296, 303. it not only against his grantor but also Comp. Morse v. Curtis, 140 Mass. 112. against everybody, especially purchasers And see dissenting opinion of Potter, J. with notice, and hence against another in McCoaker «. McEvey, 10 B. I. 606. grantee of his own grantor. 442 ESTOPPEL BY DEED. fCHAP. XI. We apprehend that this is not an accurate view of the princi- ple of privity. It is true that in the old law a feofiee was considered to be in privity with his feoffor;^ but this was because of the feoffee's tenure and of the right of the lord to fealty and service. The estoppel upon the feoffee was much like that upon a tenant now ; and it may be doubted whether it continued long after the incidents of the feudal tenure became obsoleta But however this may be, the relation of grantor and grantee is for most purposes held antagonistic. Thus, in Oster- hout V. Shoemaker^ Mr. Justice Bronson says: 'Although a tenant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor; and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel where the occu- pant is not under an obligation express or implied that he will at some time or in some event surrender the possession. The grantee in fee is under no such obligation. . . . He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.' And so it is held in Blight v. Rochester,* Averill v. Wilson,* and in other cases.^ It is true that this doctrine applies to the case of the acquisi- tion of an outstanding title on the part of the grantee ; and it is also true that where both parties to a contest for land claim from the same common title only, each may in a rather loose sense be said to be estopped to deny the other's title.^ But this rule prevails where the common title is identical, and where the grantee has no other to rely upon.^ Thus, in Ives v. Sawyer the plaintiff brought ejectment against the defendant, the plain- tiff claiming as devisee of one under whom she showed the defendant to claim by a defective deed ; and the defendant having no other title was rightly estopped from setting up the ^ Coke, Litt. 352 a. secret claims against the assignor. Vre- « 8 Hill, 513. denburgh v, Burnet, 81 N. J. Eq. 229, » 7 Wheat. 535. « Murphy v. Barnett, 1 Car. L. Rep. * 4 Barb. 180. 106 ; Ives v. Sawyer, 4 Dev. & B. 62; ^ See ante, pp. 345, 357. Compare Ben d. Love v. Gates, ib. 863 ; Den d. also the well -settled doctrine that an Johnson v. Watts, 1 Jones, 228 ; Carrer assignee of a mortgage taken for valae «• Jackson, 4 Peters, 1, 88. and without notice takes dear of aU ^ Collins v. Bartlett, 44 Cal. 871. SECT, v.] TITLE BT ESTOPPEL. 448 plea that the ancestor of the devisor had no title. And the case was similar in Douglass v. Scott, so often cited The case under consideration is different because the paities, though claiming from a common source, do not claim by the same title ; the first grantee claiming by a deed executed before the grantor had either title or seisin, and the second by a deed executed after he had acquired both. Besides, in Ives v. Sawyer •the reason of the defendant's defeat was that his deed was defec- tive ; had his conveyance been perfect in form, he must have prevailed without trying to impeach the ancestor's title. Nor in the present case does the second grantee seek to impeach the grantor's title ; his own claim requires him to uphold it He seeks to show that, as his grantor is admitted to have had no title when the first deed was executed, the first grantee took nothing under it. The difference between a purchaser (without notice) and an heir claiming under the grantor only is manifest. The latter is bound as a privy because he gets the estate without cost ; and it is right, therefore, that he should stand in the situation of his ancestor. A purchaser, however, pays value for the estate ; and while he acquires no better title than his grantor appears to possess, he may well be considered (and in general is by the law considered) as freed from the effect of any secret obligations relating to the property by which his grantor may be bound.' In other words, the land or its equivalent in value should stand for the liabilities of the owner (grantor). The heir takes it without putting anything in its place; hence it is subject in his hands to the burdens of the ancestor. The grantee puts an equivalent in its place ; hence it is not necessary or just that the land should be bound in his hands, unless he purchased with notice. In a word, the heir represents the ancestor and continues his estate ; a purchaser does not represent his vendor. It is sufficient protection to one who has been so rash as to purchase before the grantor has a title, that he may call upon his grantor to make a further assurance upon acquiring title, or, if too late for this, that he may maintain an action upon the ' The Tiew of the text is home ont by Gray, 626, and Foster v. Wightraan, 123 such cases as Fairchild v, McArthnr, 15 Mass. 100. See ante, p. 845, note 3. 444 ESTOPPEL BY DEED. [CHAP, H. covenants of his deed. It is certain that a purchaser without notice is not bound by an estoppel in pais resting on his ven- dor;^ the estoppel in such a case is not a conveyance. It would be difficult to draw a sound distinction between the two estoppels. But while we reach the conclusion that a conveyance by one having neither title nor seisin cannot operate against a subse-. quent purchaser whose deed is executed after title is obtained, the situation of the grantee of a disseisor who had no title is very diflerent Such a case comes within the terms of the Stat- ute of Uses, and the grantee acquires a legal estate, though b}^ wrong. And if the grantor should afterwards acquire title, and then make a new conveyance, the second grantee would take nothing of which he could avail himself; not on the ground that the new title directly passed to the first grantee, for that could no more be effected in this case, it would seem, than ia the other. The true reason is that the grantor has now no seisin out of which to serve a use in the second grantee ; and the Statute of Uses, therefore, cannot operate to give him a legal estate. Nor could he recover the land in the name of his grantor, for his grantor is estopped by his previous deed. Be- sides, the second conveyance being executed while another is in adverse possession is void against him and those claiming under him under the champerty law.^ We have thus attempted to show that our modem assurances with warranty do not possess the efficacy of the ancient feoff- ment in respect of after-acquired estates. But there is another difference which is worthy of note. At common law there was probably no case in which the donor was precluded from set- ting up a subsequent interest where he could not be met by a rebutter; the ground of which was the prevention of a circuity of action. The estoppel, it is true, indicated the direct passing of the after-acquired estate; but there was always connected with it this doctrine of rebutter. At the present day there are » Thistle «. Buford, 60 Mo. 278. rar v. Farrar, 4 N. H. 191 ; Trull ». 281 ; Shaw r. Beebe, 85 Vt. 204; Snod- Skinner. 17 Pick. 213. grass V. Ricketts, 13 Cal. 359 ; Dakes ^ 3 Washb. Real Prop. 293. p. Spangler, 35 Ohio St 119, 180 ; Far- SBCT. v.] TITLE BT BSTOPP^. 445 many instances of estoppel upon grantors where there can be no rebutter. Mr. Bawie mentions five classes of cases of tliis kind, to wit : 1. Where the question has arisen between the assignees of the original title and the assignees of that subsequently ac- quired. 2. Where a married woman has been held (as she has in some states ^) to be estopped by joining with her husband in tlie covenants of the deed. 3. Where the gmnt is made by the state ; the courts generally holding that the state will be es- topped by the covenants, though not liable to an action upon them.2 4. Where the covenantor has been adjudged a bank- rupt; in which case it is held that although his discharge in bankrii])tcy may be a release from liability on his contracts, yet he will be precluded by his covenants from asserting title.' 6. Where the covenants are barred by limitation.* 'Another case may be mentioned, to wit, where the consideration of the grant with warranty was love and affection only, the contest being between the grantee and a subsequent purchaser, and the grantor making no claim.* In none of these cases is there any right of action ; and there* fore the doctrine of rebutter cannot be applied. But it does not follow that future estates directly pass in such cases. In most of the cases under the foregoing heads the point was not neces- sarily raised. The .question was between grantor and grantee or their privies, while almost the only way that the point could arise (upon a conveyance for value) would be in a con- test between purchasers before and after title acquired. Between grantor and grantee for value it is well enough in a mere con- test for the new estate to say that it inures and passes to the 1 Ante, pp. 839, 340. and then acqniriHl by the father. The ^ But see ante, p. 341. defendant was a purchaser of the prem* • Rawie, Covenants, 401-408, 4th ises from the father with notice of the ed. ; Gregory v. Peoples, 80 Va. 355, deed to the son. It was held that the 357 ; Bush tr. Person, 18 How. 82. title derived from the discharire of the * Cole V, Raymond, 9 Gray, 217. encumbrance inured to the son, agninst ^ Robinson v, Douthit, 64 Texas, the claim of the purchaser. Clearly 101. There a father conveyed to his this result would not have followed in son with warranty upon the considers* a contest between the father and the tion above stated. The father had pre- son. Warranty in a voluntary convey- viously created an encnmbranoe ujK>n ance could not rebut the warrantor; the land which, after the grant to his rebutter requires a warranty in naiutt son, was bought in by a third person enfoitieable. 446 ESTOPPEL BT DEED. [CHAP. ZI. grantee.^ It might as well be so in such a case ; the grantor would be no worse oflF, the grantee no better. The only case of the five which this explanation will not reach is the first. That is the case we have been considering in the main in the preceding pages ; and we have endeavored to show that the new title passes to a subsequent purchaser without notice. And Mr. Eawle, upon a learned examination of the sub- ject in another way, reaches the same conclusion.^ So does the American editor of Smith's Leading Cases in his notes to the Duchess of Kingston's Case.^ It should be added also that the covenants considered in many of the cases coming within the above-mentioned category were covenants for title merely, such as seisin and right to convey. Now, it "would seem that covenants of this kind, so far as the question of estoppel is concerned, are of no greater effect than a specific recital of the facts. The only difference is that by put- ting the statement of facts into the form of a contract there arises a right of action for the breach. The covenant in reality is only a recital with an agreement to respond in case of its falsity. § 6. Personal Property, The question has been raised whether the doctrine of title by estoppel is applicable in the case of a simple sale of personal property ; and though it has been held to be so applicable by the Supreme Court of the United States * and by the courts of South Carolina^ and of New York,® strong opinion has been expressed the other way.^ Mr. Baron Parke doubted the doc- trine in Bryans v. Nix ; ® and the American editors of Smith's Leading Cases ® add that the law that no interest can pass either 1 But not for general purposes. See • Frazer v. Billiard, 2 Strob. 809. ante, p. 418, note. See Moore v. Byrum, 10 S. Car. 452, > Rawie, Covenants, 427 et-seq., 4th 468. ed. • Gardiner v. Suydam, 7 N. Y. 857, » 2 Smith's L. C. 720, 6th Am. ed. 868. See Kimberly v. Patchio, 19 N. Y. * Gottfried V. Miller, 104 U. S. 521, 830, 389. patent; Faulks v. Kamp, 17 Blatchf. ^ 2 Smith's L. C. 742, 6th Am. ed. 482. same ; Curran v. Burdsall, 20 Fed. « 4 Mees & W. 775, 794. Rep. 835, same ; Littlefield v. Perry, 21 • Supra. Wall. 205, though there was no warranty. SECT. VI.] TITLE BY ESTOPPEL. 447 in lands or chattels which is not vested at the time when it is granted or sold would be futile if its operation could be evaded by construing the mere grant or sale as an estoppel.^ It may now, however, be considered that the weight of authority is in favor of the estoppel wherever there is a sufficient warra'iity or recital. It is clear, as we have said, that a purchaser without notice is not bound by an estoppel resting on his vendor.^ 1 If a man agrees to sell personal or American authorities upon the latter real property not yet acquired by him, subject are very numerous and not equity will, when he acquires it, en Force altogether in harmouy ; but they are his fl^ement to convey it. Holroyd not treated as belonging to the law of V. Marshall, 10 H. L. Cas. 191, 211, title by estoppel. That is a matter of Lord We»tbury. So of mortgages of the courts of law as weU as of equity, personalty to be acquired. lb. ; Mitch- ' Ante, p. 444. ell r. Winslow, 2 Story, 630. The 448 ESTOPPEL BT DEED. [CHAP. Zn. CHAPTER XIL RELEASE OF DOWER. The rule that a party shall not be permitted to dispute his deed applies to the case of a married woman who reliuquishes her right of dower in the lands of her husband ; ^ though a widow may of course set up any title she may have or acquire distinct from dower, if her deed was merely a release of dower .• Nor is it necessary that the wife should release her dower in the same instrument by which the husband's estate is conveyed. In the case of Stearns v. Swift the wife had joined with her hus- band * in token of her relinquishment of dower,' when in fact the husband had previously parted with all his interest in the prem- ises to the grantee in the present deed ; and this deed contained no words of grant on the part of the wife. The court held that she was estopped to claim dower. Mr. Justice Wilde said that it was no valid objection to the operation of the deed on the part of the wife that her husbiind had no right or title to the land at the time of its execution. It was not essential that the sale by the husband, and the relinquishment of dower by the wife, should be made by the same deed, or at the same time.® Nor was it any objection that the deed of the wife was a mere release, without words of grant; for release of dower always operated by way of estoppel, not by way of grant. Where the husband conveys his m/e's land in his own name only, and the wife merely affixes her signature and seal to the deed in token of relinquishment of all her right in the bargained 1 Stpflrns V. Swift, 8 Pick. 532 ; Far- Maine, 867. Nor is n husband estopped ley r. Eller, 29 Ind. 322 ; Usher v, to claim curtesy in his wife's lands by Riohnrdson, 29 Maine, 415. That the having consented to her devising the wife is not estopped to claim dower same. Roach v. White, 94 Ind. 510. without a release of the same, even ^ Mcl^ery v. McLeery, 65 Maine, though she join with the husband in 172. the deed, see Lothrop v, Foster, 51 * Fowler v. Shearer, 7 Mass. 14. CHAP. Xn.] RELEASE OF DO WEB. 449 premises, she is not estopped to claim the land aft^r her hus- band's death. ^ Chief Justice Shaw in the case cited said that by law and usage the deed of the husband and wife conveying the wife's estate had been deemed sufficient ; ^ but it had also been steadily held that to have this effect the wife must have joined in the deed ; that is, it must appear that both husband and wife were parties to the efficient and operative parts of the instrument of conveyance, and that it was not sufficient that her name was annexed as expressing her assent to the act of her husband, without words expressing her formed participation in the granting part of the deed.^ The ccwe does not stand upon the footing of A's witnessing a conveyance of his own land made by B as B's land.^ On the other hand, if a second husband join his wife in conveying lands of the first husband, the wife will be estopped to claim dower in right of her first marriage.^ But in general, where the husband's deed is inoperative, the wife's re- lease of dower works no estoppel® The question was considered by the Supreme Court of Ohio in Woodworth v. Paige ^ whether a wife who releases dower in a deed made without consideration, and to defraud her husband's creditors, is estopped to claim dower against a purchaser for a valuable consideration from the grantee. The case did not turn upon this point ; but the court examined the question, and ex- pressed the opinion that there was no estoppel. This view is not without support ; ® but there are serious difficulties in the way of it. It is not the same case at all as the case of a con- test between the widow and the husband's creditors ; in such a contest it is clear that the widow must prevail,^ because the ^ Bruce v. Wood, 1 Met. 542. St. 155; Usher v. Richardson, 29 Maine, « Doane v. Willcntt, 6 Gray, 828, 416. 882 ; ante, p. 840. The husband's cov- ^ Blain v. Harrison, 11 111. 887 ; enants, of course, will not estop the Hoppin v, Hoppin, 96 III. 265. wife to claim any after-acquired estate. ^ 5 Ohio St. 70. Thompson v. Men-ill, 58 Iowa, 419. * I^ockett v, James, 8 Bush, 28. * Lithgow V, Kavenagh, 9 Mass. * Robinson v. Bates, 8 Met. 40 161 ; Powell v. Monson & M. Co., 8 Richardson v, Wyman, 62 Maine, 280 Mason, 847 ; Lufkin &. Curtis, 18 Mass. Malloney v, Horan, 49 N. Y. Ill, 228; Raymond v. Holden, 2 Cush. 264. Porter v. Ijazesr, 109 U. S. 84 ; Morton * Post, chapter 18, § 2 ; Hale v. v. Noble, 57 111. 176 ; Mattlll v. Baas, Skinnpr, 117 Mass. 474. 89 Ind. 220. * Rosenthal v. Mayhugh, 83 Ohio 29 450 ESTOPPEL BY PEED. [CHAP. XII. statutes against conveyances in fraud of creditors do not enlaige the creditors' rights. Creditors of the husband could not take property of the wife, nor will her joining in her husband's fraud make the matter different But in a contest with thQ husband's grantee, the ordinary principle may well apply ; the widow is estopped against her own releasee;^ the release does not operate indeed by grant, at common law, in any case, but it operates as effectually by estoppel.^ 1 Of coarse, after the death of her ulent acts by her. Knox v. Higgin- hoabaud, her act of conveying in fee botham, 75 Ga. 699. with warranty will estop her to claim * The subject is further considered dower or homestead. Beeves v. Brooks, in 2 Bigelow, Law of Fraud, 65-67, in 80 Ala. 26 ; Jones v. Beese, 65 Ala. press. If fraud was practised on the 134 ; Mattock c. Lee, 9 Ind. 298 ; Grant wife by the grantee, the case would be V, Parham, 15 Vt. 649. So of fraud- different lb. p. 67. PART III. BIGHTS ARISING FBOM ESTOPPEL IN PAIS. M PART IIL RIGHTS ARISING FROM ESTOPPEL IN PAIS. CHAPTER XIIL PRELIMINARY VIEW. Estoppel in pais arises (1) from contract, (2), independently of contract, from act or conduct which has induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is alleged ; ^ and it designates some present or past fact^ fixed by or in virtue of the contract, or of the act or conduct in question.* This statement would not have suited the estoppel in pais of the earlier common law. The following acts created the estop- pel of Sir Edward Coke's time : Livery (of seisin), entry, accept- ^ Ante, p. 8. See Gray v. Gray, 83 pais, as e. g. to the case of waiver ; Mo. 106 ; Yates v. Hurd, 8 Col. 843, chapter 18, § 7. 849. Id these cases the definition given ^ See ante, pp. 3, 143. Hence, as a in the third edition of this work was rule, it cannot bind after-acquired inter- adopted, to wit : ' An estoppel by mat- ests. Mowatt r. Castle Steel Co., 84 Ch. ter in pais may be defined as an express D. 58 ; East Alabama R. Co. v. Tennes- or implied admission, become indispu- see K. Co., 78 Ala. 274. But this may table by reason of the circumstance that possibly be different in a case analogous the party claiming the benefit of it has, to title by estoppel in virtue of a recital, while acting in good faith and in accord- See ante, pp. 396, 897 ; also pp. 446, ance with the real or presumed assent 447, as to personalty, of the other party, been induced by it * It is believed to be safer to de- to change his position.' But that is scribe than to define estoppel in pais dumbrous, and the term 'admission ' is in the fluctuating condition of the law not suited to all kinds of estoppel in relating to the subject. 454 ESTOPPEL IN PAIS. [CHAP. XIH. ance of rent, partition, and the acceptance of an estate.^ These acts in pais possessed the same conclusive effect as the estoppel by record or by deed! The feoffment itself at first, or rather the livery of seisin by which that conveyance was effected, was an act in pais, and possessed a higher effect as an estoppel than the deed which was employed to perpetuate its existence or to trans- fer a reversion in the same land when held by a tenant of the feoffor.^ But verbal conveyance was terminated by the Statute of Frauds. The estoppel arising in cases of partition has already been considered;^ estoppel by entry has become obsolete, at least in America ; and aside from the case of partition, only one of the instances mentioned by Coke, estoppel by acceptance of rent, prevails at the present day. And of this it is important to remark that its character is widely different from what it was in the time of Coke.* Estoppel by the acceptance of rent, as known to Coke, occurred where the landlord accepted rent from a tenant who held over after the expiration of a lease by deed.^ Such an estoppel depended upon the prior existence of a deed ; while at the present day it is immaterial how the tenure arose, as will hereafter appear. Indeed, the estoppel in pais of the present day has grown up almost entirely since the time of Coke, and embraces cases never contemplated in that character by him or by the lawyers of even much later times, though the old lines are often visible in the newer pathways. Thus, by analogy to the rule that a tenant shall not dispute the title of his landlord (and even this rule did not prevail in Coke's day ; * the only estoppel of a tenant being by virtue of a deed, as we shall see), an estoppel has been in- troduced in the case of bailment, which forbids a bailee, in gen- eral terms, to dispute his bailor's title. Other cases of a similar character have arisen ; while still others, wholly unlike any of the estoppels of the older law, have come into existence, even 1 Inst. 862 a. Undloid's Title, by Mr. Joeeph Willwd > 2 Smith's L. G. 742, eth Am. of the Boston bar. ed. ft 3 Black. Com. 209 ; Z Black. Com. < Ante, ppw 409, 410. 175. • 5 American Law Review, p. 1 (Oc- • Moffat v. Strong, 9 Bosw. 67, 65, toher, 1871). A yaluable article upon per Woodrnff, J. ; Duke •. Ashby, 7 the Estoppel of a Tenant to deny his Horl. & N. 600, 602, Pollock, C. B. CHAP. XIII.] PREUMINABT VIEW. 455 within living memory. In no part of the law^ indeed, are ac- tivity and growth more manifest than in this branch of our sub- ject ; nowhere is the ezpansiveness of the common law seen to better advantage. The whole subject, as we have intimated, is modem, and, re- jecting most of the old nomenclature, may be considered under two or three heads having modern names. One class of cases is designated in this work as Estoppel by Contract, a term which is intended to embrace (1) all cases in which there is an actual or virtual undertaking to treat a fact as settled, so that it must stand specifically as agreed, and (2) all cases in which an estoppel grows out of the performance of the contract by opera- tion of law. Whether all the cases here referred to ought to be called estoppels is now probably too late to inquire, for it would be vain to resist the current Much of it must certainly have fallen without the Hues of estoppel as laid down by Coke ; how some of it, had it arisen, would have been disposed of, is not clear. The truth appears to be that the requirements of modem society could not have been expressed in the terms of the old law, and the bands had to be imloosed. Estoppel by Contract will be the first division to be considered. It should be observed, however, that this head does not include cases of estoppel not arising by or by virtue of the contract itself, though arising in the course of the contract ; if the estoppel is no part of the contract itself, or of its legal efiect, it belongs to the next head. This next head, which constitutes a most important addition in recent times to the law of estoppel, embraces the class of cases known and herein designated as Estoppel by Con- duct ; the estoppel arising without regard to contract, or rather the fact to be taken as true not being necessarily or ordinarily the subject or the effect of contract At the present day no subject is more constantly before the courts. What would have been done at law in Sir Edward Coke's time with a case like Pickard v. Sears ^ — where the owner of goods permitted the property to be sold as another's' — does not appear. Probably upon the attempt of the owner to recover the property in trover or in detinue the defendant would have had recourse to the 1 6 Ad. & £. 469. * See chapter 18. 456 BSTOPPEL IN PAIS. [CHAP. XHI. chancellor to stay the plaintifiTs hand ; or perhaps he would have gone there in the first instance upon discovering the fraud and rescinding the contract At any rate, the estoppel at law for such cases appears to have been unknown. A learned judge has said that this estoppel was a device of the common-law courts, worked out through the system of special pleading, to strengthen and lengthen the arm of the law judges, and so to enable them to do what the Court of Chancery had always done unaided.^ This will be the second subject for consideration, and will complete the substantive law of estoppel in pais proper. Besides these two classes of cases, the doctrine, or at least the name, of estoppel has been extended during the present century, and especially within thirty or forty years past, to a variety of cases, embraced in the present work under the heads of Election, and Inconsistent Positions, herein called Quasi-Estoppel, and following the two subjects before mentioned. There are cases too in which the term appears to have been used merely for convenience, as equivalent to *bar.' Such need not be con- sidered. Indeed, in regard to many modem cases it may be doubtful whether anything more has been done than to add a new name to subjects already worked out upon grounds of their own, however nearly those may resemble the grounds of ad- mitted estoppels of the present time. But it must always be understood that such cases stand upon their own grounds, so far as these are distinctive. Thus, in the case of waiver of rights, which is often called a case of estoppel by conduct, the ground upon which the waiver rests is, at least in ordinary cases, knowledge by both parties of the facts ; it is not to be supposed that by calling the case * estoppel by conduct* knowl- edge of the facts on the part of the one claiming the weaver is fatal,^ as in the typical example of estoppel by conduct^ to wit, misrepresentation of some fact.^ This is enough to indicate that there may be danger in using the term 'estoppel' freely. It is common enough at present to speak of acquiescence and ratification as an estoppel.* Neither ^ Bacon, V. C. in Keate v. Phillips, operates specificaUy, and not in the 18 Ch. D. 560, 577. alternative of damages, the effect of an ^ See post, chapter 18, § 7. estoppel is produced. * In that the waiver, when binding, ^ See ei. g. Aldrich v, Billings, 14 CHAP. XIII.] PBEUMINART VIEW. 457 the one nor the other^ however, can be more than part of an es- toppel, at best An estoppel is a legal consequence — a right — arising from acts or conduct ; while acquiescence and ratification are but facts presupposing a situation incomplete in its legal aspect, i e. not as yet attended with full legal consequences. The most that acquiescence or ratification can do, and this either may under certain circumstances do, is to supply an ele- ment necessary to the estoppel, and otherwise wanting, as e. g. knowledge of the facts at the time of making a misrepresenta- tion.^ But each stands upon its own grounds, and must be made out in its own way, not necessarily in the way required by the ordinary estoppel by conduct. Again, there are cases of agency which are sometimes put as estoppels that are not properly such. Thus, the rule that one who has left with another his signature to an incomplete mer- cantile instrument or other contract — that is, with a blank to be filled — is bound by the act of that person, in completing the instrument, has been called an estoppel.* Estoppel by conduct broadly this cannot be, for the principal's conduct in trusting the agent is not, or may not be, in the other's change of posi- tion, or in immediate connection with it, as it must be for an estoppel.^ Nor is there any false representation, the only other kind of estoppel the case could fall under. On the contrary, there is a true representation, to wit, of agency ; and the only question is how far the agency ought to extend. That is not estoppel, but agency, pure and simple ; the agent has only ex- ceeded his instructions. That is the legal view of the case, however gross the abuse. On the other hand, where the prin- cipal's act or omission in the agency is in, or in immediate con- nection with, the very change of position by the person dealing R. I. 232, 289 ; Sheldon Hat Co. v, ish Co., 2 Hnrl. & C. 175, 182, Exch. Eicbmeyer Hat Co., 90 N. Y. 607, 614 ; Ch. ; Arnold v. Cheque Bank, 1 C. P. McCreary v. Parsons, 81 Kans. 447, D. 578 ; Seton v. Lafone, 19 Q. B. D. 461 ; Vallette v. Bennett, 69 III. 632; 68, C. A. affirming 18 Q. B. D. 189; and other ca.ses in chapter 21, at the end. Merchants of the Staple v. Bank of 1 See chapter 18, § 3. England, 21 Q. B. D. 160, C. A. ; ^ See e. g. Jewell v. Rock River Vagliano v. Bank of England, 22 Q. B. Paper Co., 101 111. 57. D. 103, 117; affirmed 23 Q. B. D. 248, • Bank of Ireland v. Evans Charities, C. A. This subject will be further con- 5 H. L. Cas. 889 ; Swan v. North Brit- sidered in a subsequent chapter. 458 ESTOPPEL IN PAIS. [CHAP. Xin. with the agents and is the proximate causd of such change, there may he an estoppel against the principal from denying effect even to a forgery by the agent.^ So, again, to hold one out as agent, and then attempt to deny the agency altogether, is (after some one has acted upon the representation) another thing ; that is a case of estoppel. The result in this particular case is of course the same ; but where there is danger of con- fusion, things should be called by their right names.^ It may be observed in this connection that estoppel by misrepresenta- tion or concealment of title was at first argued at the bar, and perhaps considered by the bench, as resting on agency ; ^ but that view never gained acceptance.^ 1 Caaes in note 8, p. 457. • Pickard v. Sean, 6 Ad. fc E. ' Even parchaae for valae without 469. notice haa been called estoppeL Grimes ^ See note (a), near the beginning of V. Taft, 98 N. Car. 198, 198. chapter 18. SECT. I.] ESTOPPEL BT CONTBAGT : FACTS AGREED. 469 A. ESTOPPEL BY CONTRACT. CHAPTER XIV. FACTS AOBEED OR ASSUMED. § 1. The general Principle. The first class of cases under the head of Estoppel by Contract, as stated in the preceding chapter, arises where there is an actual or a virtual undertaking to treat a fact as specifically settled. Stated in full, the general rule of law appears to be this : A fact agreed or assumed to be true, as the basis of a contract, must be taken to be true specifically, until the contract itself is law- fully impeached by plaintiff or by defendant, or until some l^al proceeding is taken to impeach the truth of the (supposed) fact ; assuming that the contract itself is not contrary to law.^ In other words, supposing the contract to be lawful and binding, the party or parties (it may be one, it may be all) pledging or justly assuming the fact in question will be estopped from tak- ing any position, to the detriment of other parties, inconsistent with the special fact, except for the purpose of reforming the language of a written contract and making it conform to the real terms of agreement. The rule may be illustrated by two or three examples. Thus, dealing with a person on the footing that he occupies a par- ticular position or character, it may be as administrator, execu- 1 Ab to illegal contracts see Bright- 864 ; Klenk v. Enobel, 87 Ark. 804 ; man v. Hicks, 108 Mass. 246 ; Orego- Webb v, Davis, iU 550. The Arkansas nian By. Co. v. Oregon Ry. Co., 10 cases were cases of recitals and eoye- Sawy. 464 ; Dnpss v. Wassell, 1 Dil- sants held contrary to public policy. Ion, 218 ; Langan v, Sankey, 55 Iowa» and hence as not creating any estoppeL 52 ; Shorman o. Eakin, 47 Ark. 851, 460 ESTOPPBL IN PAIS. [CHAP. XIV. tor, trustee, director, agent, or holder of any manner of office, will estop that person, generally speaking, to deny the fact agreed or assumed in regard to his position or character.^ So a contract based upon one's having a certain title to property will estop the parties, or the party pledging the fact if it be the act of but one,' in the performance of the contract, from claim- ing a different title.^ And so accepting and treating an article in shipment as baggage may estop owner and carrier from treating it as freight^ The estoppel in this class of cases is fixed by the execution of the contract ; nothing further need be shown, where the fact in question is clearly agreed or assumed. The question, then, will be whether the fact has been so agreed; where, in the intention of the parties or in contemplation of law, it has not been, something more than the execution of the contract will be necessary for the estoppel Acknowledgment of receipt of money or of a commodity, in a contract (to be considered later), may be a case of the kind. On the other hand, this class of estoppels being founded upon contract, it can seldom be an answer to the alleged estoppel, unlike the case of estoppel by conduct, that the party supposed to be estopped acted in ignorance of the facts and under mis- take. There are some exceptions, it is true, but they appear to belong mainly to those cases in which the fact in question turns upon some act done in pursuance of the contract, — as in the case of delivery of possession to a tenant constituting the ground of the tenant's estoppel, — in distinction from an agreement of the fact itself. 1 See state v. Spanlding, 24 Eans. 1, 'See Strougbill o. Back, 14 Q. 6. 11 ; State v. Stone, 40 Iowa, 547; Dn 781 ; ante, p. 869. Val V, Marshall, 80 Ark. 280 ; Hill v. « Welsch v. BelleviUe Bank, 94 III. Huckabee, 52 Ala. 155 ; Riddle v. Hill, 191. 51 Ala. 214 ; Meyer v, WUtshire, 92 HI. * Hoeger v. Chicago Ry. Co., 68 Wis. 895 ; Floyd Co. v. Morrison, 40 Iowa, 100. For other examples of the general 188 ; Oakland Paving Co. v. Rier, 52 rule see Perdue v. Brooks, 85 Ala. 459, Cal. 270 ; McClnre v. Commonwealth, usury ; Gayle v. Johnson, 80 Ala. 388 ; 80 Penn. St. 167 ; Morris v. State, 47 Cothran v. Brower, 75 Ga. ^94, agree- Texas, 588 ; Central Railroad v. Hen- ment as to issues ; Fourth National derson, 69 6a. 715 ; Campbell v. Trun- Bank v, OIney, 68 Mich. 58, authority; nell, 67 Oa. 518 ; Imboden v, Etowah State v, Anderson, 16 Lea, 821. Mining Co., 70 Ga. 86. SECT. II.] ESTOPPEL BT CONTBACT : FACTS AGREED. 461 Such is the geueral rule, and its meaning. But there may be a question further back, for thus far the existence of a valid contract has been assumed. In general, either party may show that the contract is invalid ; but may this rule of law itself be subject in any case to the law of estoppel ? May the parties, or either of them, be estopped to show some fundamental fact or law, at variance with the fact or law agreed or assumed as necessary to the transaction, which fundamental fact or law, if it could be shown, would invalidate the contract ? ^ This ques- tion touches mainly the law relating to corporations, to which we now tura § 2. Corporations, What we shall have to say now will concern mainly the question of the existence and powers of a corporation ; for where there is no dispute concerning the existence of the corporation or its power to perform the particular contract, but the sole inquiry is whether an act or a representation has generated an estoppel, the decision of the case must turn upon the principles of estoppel by conduct, of which later. And in regard to cor- porations it may at the outset be observed that there is no radical^ distinction between municipal and private bodies or individuals so long as the act in question is not in any form ultra vires.' What, however, is ultra vires 'in any form ' remains to be seen. First, then, concerning the question whether a body of men contracting as a corporation can dispute their existence as such before the law, and so defeat the contract This question may arise in at least two ways : first, in the way of an attempt to 1 That is, some fundamental fact in Ohio St. 552 ; Union Depot Co. o. St the heginning, as distinguished from Louis, 76 M>o. 898 ; New Haven R. Co. ratification or appropriating the benefits v. Chatham, 42 Conn. 465 ; Society for of the contract. As to that see the chap- Savings v. New London, 29 Conn. 192; ter on BUection, post. Chicsgo Ry. v. People, 91 111. 251 ; * There is perhaps one of degree. Martel v* East St. Louis, 94 111. 67 ; The doctrine of acts ultra vires is, no Roby «. Chicago, 64 111. 447 ; Chicago doubt, applied with greater strictness to R. Co. v. Joliet, 79 111. 89 ; Logan Co. municipal than to private corporations, v, Lincoln, 81 111. 156 ; Cumen v. New Newbery ». Fox, 87 Minn. 141, 148. York, 79 N. Y. 511 ; Calhoun v, Ameri- * See e. g. fiank v. Flour Co., 41 can Emigrant Co.. 98 U. S. 124, 180. 462 BSTOPPEL IN PAIS. [CHAP. ZTT. deny that any act of incorporation has ever been granted to the body ; secondly, in the way of an attempt to deny the validity of a charter of incorporation issued under a real act of the legis- lature, as e. g. on the ground that that act was unconstitutionaL The first form of the question does not often arise, and what is to be said on authority remains to be seen. Ordinary cor- porations are certainly the creatures of statute purely ; there can be no such thing without statute. But a non-existing thing can be treated as existing to the extent of creating an estoppel to deny its existence, as in the familiar case of a false represen- tation or warranty of title by the vendor of land, or of the false assumption of the character of executor or the like;^ and supposing that the assumption of incorporation is not a violation of statute, there may be ground enough for believing that the assumption may be such as to estop the body. Direct stipulation that the body has received a charter &om the legislature would perhaps make such a case.^ The doubt applies only to ordinary corporations ; that is, to commercial, religious, and eleemosynary corporations. Counties and towns are deemed corporations at common law in many of the states ; and certainly in such states it never could be alleged (if it could anywhere be alleged) by way of defence to an action against the municipality that it had never been incorporated by the legislature. It should be added that a third person, as e. g. one assuming to act for a supposed corporation, will be estopped probably in any case to deny the truth of the represen- tation expressed or implied in holding out the corporate existence of a body to an innocent person, who has been induced thereby to deal upon that footing.^ Supposing, on the other hand, that an act of incorporation (where one is necessary) has been obtained, we are brought to the more common question whether a body assuming to act un- der chartered authority has the right to deny the legality of its existence as a corporation in an action to enforce liability de- pendent upon such existence. In answer to this it may be laid 1 Supra, p. 460. < See Oorwith «. Culver, 69 lU. < See Rikhoff v. Brown's Sewing 602. Maohiue Co., 6S Ind. 388. SECT. II.] ESTOPPEL BT CONTRACT : FACTS AGREED. 463 down with reference to cases of contract that the bar of estoppel appears to prevail whenever a body, assuming according to the mode prescribed by law to be a public or a private corporation, attempts to set up any defect in the steps towards its organiza- tion, required by law, against a party who had no notice of such defect when the contract was made.^ Thus, in Dooley t;. Cheshire Glass Go. the defendants in an action of contract at- tempted to set up in defence the falsity of the certificate of their organization filed according to the requirement of law ; but the court refused to hear them. It was declared that by placing the certificate upon the records the officers were precluded from disputing its truth against an innocent person. A further objection by the defendants, that there had been no such pub- lication of the certificate as the statute required, was also disregarded by the court The right of the party with whom a supposed corporation has contracted, to escape liability upon his engagement by denying the legal existence of the body, is a different thing. This ap- pears to be permitted only when it is shown to be of the essence of the contract that the body should be a lawful corporation.' In ordinary cases it is not allowed an individual to escape an obligation by showing the incapacity of the other party to the contract to act as he has assumed to act. We have elsewhere seen that this is a broad rule of law ;^ and ordinarily it is quite as true of persons liable in contract to corporations as in other cases. In whatever form a person may have contracted with a de facto corporation, at least where the contract is not in itself entirely beyond the powers of the corporation,* whether the contract is by subscription to stock, by promissory note, by bond, mortgage, or otherwise, he will be estopped when sued thereon by the corporation to allege the plaiutiflTs non-existence before the law at the time of the agreement,^ except in the unusual ^ Dooley v. Cheshirn Glass Co., 15 see Boyce v. Methodist Church, 46 Hd. Gray, 4d4 ; Lehmali v. Warner, 61 Ala. 859. 455 ; Sherwood v. Alvis, 88 Ala. 115 ; * Lehman v, Warner, 61 Ala. 455. McCarthy v, Lavasche, 89 lU. 270 ; • See infra, p. 465. Barboro v. Occidental Grove, 4 Mo. * This limitation is held necessary in App. 429 ; Attorney-Gen. v. Simon- Alabama. Sherwood v. Alvis, 88 Ala. ton, 78 N. Car. 57 ; Ha^erman r. Ohio 115, and cases cited. Building Assoc., 25 Ohio St. 186. But * There are many illustrations. See 464 ESTOPPEL IN PAIS. [CHAP. XIV. case above mentioned, or where there was fraud in securing recognition as a corporation.^ A corporation may in general be required to show its legal existence preliminary to its right to sue in the courts, but that is done as against the defendant (which is of course enough for the particular case) by showing the contract.* On the other hand, one not a party to a contract with a cor- poration except by force of law may, it seems, dispute the legal existence of the body.^ A fortiori may one sued in an action of tort by a body professing to be an ordinary corporation re- quire proof of the plaintiffs' incorporation and dispute the legality of the acts constituting the supposed corporate existence. But it probably would not be enough in this or in any other case to show that certain preliminary steps not of the essence of the legal organization of the body were omitted. Indeed, what would be enough to show the invalidity of the oi^anization, especially where it has been recognized by the courts or by the state as a legal body, must always be a question of difficulty where there is no specific declaration of statute. It may be added that just as the existence of a supposed corporation may be denied by a defendant sued for a tort, so may the supposed corporation show its non-existence when itself sued for a tort. Next, with regard to the question of the right to deny the power of a lawful corporation to do an act which it has assumed to do, concerning which a distinction must be noticed similar Close V. Glenwood Gem., 107 U. S. 466, tional Ins. Co. v, Bowmnn, 60 Mo. 252; 477 ; Oregonian Ry. Co. v. Oregon Ry. St. Louis ir. Shields, 62 Mo. 247: Nashua Co., 10 Sawy. 464 ; Lehman v. Warner, Ins. Co. v. Moore, 55 N. H. 48 ; Wilks 61 Ak. 455 ; Cahall v. Citizens' Build- v. Georgia R Co., 79 Ala. 180, 187; ing Assoc, ib. 282 ; Marion Bank v. Commercial Bank v. Pfeiffer, 108 N. Y. Dunkin, 54 Ala. 471 ; Eaton v. Aspin- 242, 254. wall. 19 N. Y. 119; Franklin v. Two- i Doyle v. Mizner, 42 Mich. 832. good, 18 Iowa, 516 ; Broadwell v, Mer- * Lehman v. Warner, supra ; Sher- ritt, 87 Mo. 95 ; But-chers' Bank v. wood t;. Alvis, 88 Ala. 115. More may McDonald, 130 Mass. 264 ; Commis- be required where there is no contract sioners v, Bolles, 94 D*. 8. 104 ; Mc- between the parties, showing the incor- Langhlinv. Citizens' Building Assoc, 62 poration. Savage v. Russell, 84 Ala. Ind. 264 ; Massey v. Building Assoc, 103, contract rescinded. 22 Kans. 624. See also Phoenix Ware- * Marion Bank v. Dunkin, 54 Ala. house Co. V, Badger, 67 N. Y. 294; 471. Stotttimore v. Clark, 70 Mo. 471; Ka- SECT. II.] ESTOPPEL BY CONTRACT : PACTS AGREED. 465 to the one jc^st under consideration. A corporation may in many cases deny its power to do wbat it has undertaken when the opposite party could not make such denial. A man cannot set up the incapacity of the party with whom he has contracted in bar of an action by that party for breach of the contract. Legal disability generally, as e. g. in the case of an infant,^ is a defence personal to him who is under it, and cannot be made use of by another.^ The case of a corporation, not prohibited by law to do the act in question, makes no exception ;* one sued 1 Kendall v. Titus, 9 Heisk. 727. Springs Co., 100 U. 8. 61, and the text, ' The principle is general that one can- supra. See also Branch v. Jesup, 106 not set up a defence which is personal to U. S. 468, 481. another, except in cases in which agree- But if the contract of the supposed ment or public policy permits. See e. g. corporation was not only unauthorized Swaun V. Wright, 110 U. S. 590. It was but absolutely prohibited by law and there held that if a party purchase prop- therefore illegal, snch fact may, it seems, erty under a decree reciting the sale to be shown when the corporation seeks to be subject to liens operating against enforce the contract. Oregonian Ry. bondholders, already judicially estab- Co. v. Oregon Ry. Co., at p. 479 ; Sem- lished or afterwards to be established in pie r. Bank, 5 Snwy. 98. a certain way, he cannot afterwards dis- It may very well be too that a per- pute the validity of such liens, while son who has dealt with a corporation retaining the property, by showing that upon the footing of statutory power in fraud was practised in obtaining them, the coi'poration to do an act may show. That is a matter for the bondholders. when the corporation seeks to enforce * Oregonian Ky. Co. v. Oregon Ry. Co., its supposed powers against him in the 10 Sawy. 464, where the ground taken matter, that the statute authorizing the in the text is directly upheld (though transaction was unconstitutional. South Teversed on other grounds. 130 U.S. 1), Ottawa v. Perkins, 94 U. S. 200, 267 ; 'The law,* said the covtrt, * is well set- Tone ». Columbus, 89 Ohio St. 281. tied that a person who contracts with Public policy requires that an act of the an apparent corporation as such is es- legislature which is in contravention of topp<'d, when sued on such contract, to the constitution should be shown to be say that the plaintiff had no corporate so as soon as may be, before serious existence or power to make such con- consequences hare resulted ; and cases tract A corporation, like an individual, which declare that a man may be es- when sued on a contract, may set up as topped to show such a fact should be a defence its want of power or capacity scrutinized, to see if the decision is not to make such contract ; but the party to be confined within very narrow lim- with whom it contracts cannot set up its. Of cases of the kind see M#tz v. such want of power or capacity as a de- Detroit, 18 Mich. 526; Fei^uson v. fence to an action by the corporation Landram, 6 Bush, 280 ; s. c. 1 Bush, for a breach thereof. And the reason 548 ; Tone v. Columbus, 89 Ohio St. of the distinction is that legal disability, 281, conceding with Counterman v. as in the case of a minor, is a defence Dublin, 88 Ohio St. 515, 517, and South personal to the party who is under it, and Ottawa v. Perkins, 94 U. S. 200, 267, cannot be taken advantage of by anoth- that the general rule is against the es- «r.' Deady, J. at p. 477, citing Cowell v, toppeL Benefits received and retained 80 466 ESTOPPEL IN PAIS. [CHAP. XIV. in contract by the body cannot say that the corporation had no lawful existence or power to make the contract,^ unless it was prohibited by law to make it, or unless it was stipulated that the bargain should be off in case it should turn out that the cor- poration was acting ultra vires, or unless there was fraud on the part of the body in this particular. The more important question is. When if at all may a cor- poration itself, not the opposite party, repudiate its undertaking by alleging that the undertaking was without its powers ? Con- fusion among the earlier authorities will be found in the answer given to this question ; nor are the recent cases in perfect harmony. It appears, however, to be agreed by the better authorities of the present time that if the act undertaken was in and of itself ultra vires of the corporation, no act of the body can have the effect to estop it to allege its want of power to do may make an exception. See, further, v. Mississippi R. Co., 85 Ala. 88 ; chapter 21. Worcester Med. Inst, v, Harding, 11 ^ Oregonian Ry. Co. v. Oregon Ry. Cush. 285 ; Congregational Soc. v. Per- Co., 10 Sawy. 464 ; Cowell v. Springs ry, 6 N. H. 164 ; Cochran v. Arnold, Co., 100 U. S. 61 ; Close v, Olenwood 58 Penu. St. 899 ; Ray v. Indianapo- Cera., 107 U. S. 466, 477 ; Whitney v, lis Ins. Co., 39 Ind. 290 ; Lucas v. Robinson, 53 Wis. 809 ; Manufacturing Greenville Assoc., 22 Ohio St. 389 ; Co. V, Montgomery, 74 Mo. 101 ; Fi-ench Frost v. Frostburg Coal Co., 24 How. V. Donohue, 29 Minn. Ill ; Franklin v. 278. The rule in regard to ultra vires Twogood, 18 Iowa, 515 ; Pauctoast v, appears to be contra in Alabama. Cham- Travelers' Ins. Co., 79 Ind.,172 ; Sniel- hers v, Falkner, 65 Ala. 448 ; Mont- ser r. Wayne Turnpike Co., 82 Ind. 417; gomery v. Montgomery Plank Road Co. , Hasselmau o. United States Mortg. Co., 81 Ala. 76; Marion Bank v. Dunkin, 97 Ind. 365 ; Dooley v. Wolcott, 4 Al- 54 Ala. 471. But the reasoning is in- len, 406 ; Brouwer v, Appleby, 1 Sandf. sufficient The estoppel applies there 138 ; St. Louis Gas Co. v. St. Louis, to the question of existence. Central 84 Mo. 202 ; Father Matthew Soc. v, Agric Assoc, i;. Gold Ins. Co., 70 Ala. Fitzwilliam.s, ib. 406 ; Imboden v. Eto- 120. Whether one who has participated wah Mining Co., 70 Ga. 86 ; Helena o. in the formation and business of a cor- Turner, 36 Ark. 577 ; Central Agric. poration de facto is not estopped to deny Assoc. V. Gold Ins. Co., 70 Ala. 120 ; the incorporation of the company, Esti'y Manuf. Co. v. Runnels, 55 Mich, quaere. Whipple v. Parker, 29 Mich. 130 ; First National Bank v, Gillilan, 369. See Swart wont v, Mich. Air Line 72 Mo. 77 ; Branch v. Jesup, 106 U. S. R. Co., 24 Mich. 389, holding that there 468, 481 ; Teutonia Bank v, Wagner, 33 may be such an estoppel ; Wheelock r. La. An. 732 ; Latiolais V. Citizens' Bank, Kost, 77 lU. 296. Dealing with an ib. 1444 ; Black River R. Co. v, Clarke, agent as such may work a like estoppel. 25 N. Y. 208; Eaton V. Aspinwall, 19 Campbell v, Trunnell, 67 Ga. 518; N. Y. 119; Dutchess Cotton Manuf. Central Railroad r. Henderson, 69 G«. Co. V. Davis, 14 Johns. 238 ; Mc- 715. Broom v. Lebanon, 81 Ind. 268; Eppes SECT. If] ESTOPPEL BY CONTRACT : FACTS AGREED.. 467 what was undertakeu.^ The powers of the ordinary corporation being dependent upon the statute which created the body, those powers cannot of course be enlarged by the body itself; and the act in question being in itself ultra vires, tl)e corporation cannot make it otiierwise whether directly or indirectly.^ Tims, if the issuance of municipal bonds was without the powers of the municipality, the fact that citizens stood by and saw them sold to bona fide purchasers for value, and that the corporation afterwards recognized the act of issuance as binding, will not estop it to deny the legality of the bonds in whose hands soever it may be sought to enforce them.* Nor will I'ecitals in the bonds, of the power of the corporation to issue them, work an estoppel* Nor will the payment of taxes to meet interest on the bonds have the effect of an estoppel in such a case.* However, if a contract with a corporation has been performed in good faith by the other party, and the corporation has received the benefits thereof, it probably cannot interpose against its duties assumed thereunder the defence of ultra vires,® as e. g. that the statute creating the charter was unconstitutional.^ Perhaps the corpo- ration could still show that its act was a direct violation of statute.^ 1 Fairtitle v. Gilbert, 2 T. R. 169 ; 96 D". S. 267 ; San Antonio v. Mehaffy, In re Companies Acts, 21 Q. B. D. 301 ; ib. 812 ; Hitchcock v. Galveston, ib. Daviess r. Dickinson, 117 U. 8. 657 ; 851 ; Morris R. Co. i;. Railroad Co., 29 ante, p. 349. N. J. Eq. 452 ; Whitney Arms Co. v. « McPherson v. Foster, 48 Iowa, 48 ; Barlow, 63 N. Y. 62 ; Texas Ry. Co. Schaeffer v, Bonham, 95 111. 868 ; South v. Gentry, 69 Texas, 625. See Bliss v. Ottawa V. Perkins, 94 U. S. 260 ; An- Keweah Canal Co., 65 Cal. 502. And thony V. Jasper, 101 U. S. 698, 697 ; comp. the rule in equity in regard to Northern Bank v. Porter, 110 U. S. infants. Goodman v. Winter, 64 Ala. •608,618. 410, 437; Commonwealth ». Sherman, * McPherson v. Foster, supra. 18 Penn. St. 346. But a corporation * Northern Bank r. Porter, 110 U. S. having paid money on a contract which 608. See Carroll v. Smith, 111 U. S. it has afterwards found to he ultra vires 556; Boyce v. Methodist Church, 46 Md. may, it seems, rescind and recover back 359 ; Lake v. Graham, 180 U. S. 674. the money. Green Bay Canal Co. r. * Schaeffer r. Bonham, supra. Hewitt, 62 Wis. 316, 327 ; North west- « Ward V. Johnson, 95 111. 215, 240; ern Packet Co. v. Shaw, 37 Wis, 655. Darst V, Gale, 83 111. 141 ; Thomas v, "^ See McDonnell v. Alabama Ins. Citizens' Ry. Co., 104 IlL 462 ; Peoria Co., 85 Ala. 401, as to the stockholders' R. Co. V. Thompson, 103 111. 187 ; attempt to deny such constitutionality ; Louisville R. Co. «. Flanagan, 113 Ind. Daniels v, Teamey, 102 U. S. 416, 420, 488, 493 ; Daniels v. Teamey, 102 U. S. 421. 415, 420 ; Railway Co. v. McCaithy, ^ Swann v. Miller, 82 Ala. 580, 587. 468 ESTOPPEL IN PAIS. fCHAP. XIV If, on the other hand, the undertaking was within the general scope of the powers of the corporation, the question will gener- ally be one of agency. If the other contracting party had no knowledge or notice ^ that the corporation acted without taking all the steps required by its charter or by-laws, the defence, it is generally held, of irregularities and omission of requirements is not open.* And the same appears to be true where the power in question is germane to other power given to the corporation by statute.' Nor could the corporation say that a peraon held out as having authority to sign its bonds, though the holding out consisted only in allowing him to sign them, had no author- ity to act in that way.* Often, however, th^ case is strengthened by some representa- tion on the part of the corporation, to the effect that the neces- sary steps have been taken to make the contract conform to the requirements of law. When this is the case, and the represen- tation is a clear, distinct statement,^ the corporation, like em in- ^ Where bonds show on their face make the contract may be wanting alto- that they were issued before the time gether. See Boyce v. Methodist Church, when the law authorizing them took 46 Md. 359. A corporation doing busi- effect, the holder has fatal notice, for he ness in a state other than that which is bound to know the law authorizing created it will be estopped when sued the execution of the bonds. McClure there to say that it has no authority to V. Oxford, 94 U. S. 429. See Northern do business in such state. Clay Ins. Bank v. Porter, 110 U. S. 608, 618 ; Co. r. Huron Salt Co., 81 Mich. 846. Bissell ». Spring Valley, ib. 162. • West v. Menard Agr. Board, 82 « In re Romford Canal Co., 24 Cb. 111. 205 ; Chicago Building Assoc, v. D. 85 ; Webb v. Heme Bay Comrs., L. Crowell, 65 111. 453. R. 5 Q. B. 642 ; Anthony r. Jasper, 101 * Weyauwega v, Ayling, 99 U. S. U. S. 698. 697 ; Northern Bank v. Por- 112. See Oakland Paving Co. r. Rier, ter, 110 U. S. 608, 618 ; Gaus w. Chi- 52 Cal. 270. cago Ry. Co., 60 W^is. 12 ; Merchants* « That of course is essential. School Bank v. State Bank, 10 Wall. 604, 644; District v. Stone, 106 U. S. 183. In Commonwealth v. Reading Bank, 187 this case bonds issueti by a school dis- Masa. 431, 440 ; Eminence v. Crasser, trict of Iowa recited that they were * w- 81 N. Y. 52 ; Stoddard v. Shetucket sued by the board of school directors by Foundry Co., 34 Conn. 542 ; Home Ins. authority of an election of the voters of Co. r. Sherwood, 72 Mo. 461 ; Schaeffer said school district held on the thirty- V. Bonham, 95 III. 368. The New York first day of July, 1869, in conformity cases are contra. See infra, p. 469, note 2. with the provisions of ch. 98 of acts 1 2th Nor perhaps will the rule of the text ap- General Assembly of the state of Iowa.* ply to preclude a supposed corporation, The constitution of the state limits in- when sued upon a contract by it, from debtedness of school districts to an showing that it has never become a cor- amount not exceeding five per cent on poration ; for in that case its power to the value of their taxable property. The SECT. II.] ESTOPPEL BY CONTRACT : FACTS AGREED. 469 dividual, will be estopped, if the transaction was not beyond its powers, in favor of an innocent person who has acted upon the representation, to deny the truth of the statement^ This sub- ject has found frequent illustration in actions upon municipal bonds. In these cases it has been repeatedl}^ laid down by the Supreme Court of the United States, by state courts, and in England, that a bona fide purchaser for value, without notice of any defect in the steps preliminary to the execution of the bonds, is not bound to look further than to see that the munici- pality had legislative authority, and that (when required by statute) the officers authorized have decided that the conditions to issuing the bonds have been fulfilled.^ And in such a case a recital upon the bonds that the necessary conditions have been performed is sufficient to estop the municipality as against such a holder.^ court held that the recital did not im- v. Porter, 110 U. 8. 608 ; Coloma v, port a compliance with the law; it im- Eavea, 92 U. S. 484 ; Buchanan tr. plied nothing more than that the bonds Litchfield, 102 U. S. 278 ; Knox County were issued by authority of the electors, v. Aspinwall, 21 How. 589 ; Cotton v, and that the election was held in con* New Providence, 47 N. J. 401 ; Mutual formity to the statute. The statute, it Benefit Ins. Co. v. Elizabeth, 42 N. J. was said, mi^ht have been pursued in 285. Contra, Starin v. Genof, 23 N. Y. regard to the time and place and man* 439 ; In re Sharp, 56 N. Y. 257 ; ner of election, and yet the law might Cagwin v, Hancock, 84 N. Y. 582 ; have been disregarded in respect to the Ontario v. Hill, 99 N. Y. 824. And limitation of inrlebtedness. The court see Steckett v. East Saginaw, 22 Mich, conceded that this might be a some- 104 ; Tone v. Columbus, 39 Ohio St. what strict construction of the recital, 281, 298 ; post, chapter 19. but declared that construction ought to ' Cases last cited ; also Ijake v, be strict when it was proposed by mere Graham, 180 IT. S. 674, 681 ; Orleans recitjils on the part of officers of a v. Piatt, 99 U. S. 676, 682 ; Lyons v. municipal corporation to exclude in* Munson, ib. 684 ; Menasha v. Hazard, quiry whether bonds issued in its name 102 U. S. 81 ; Buchanan v. Litchfield, were made in violation of the constitu* ib. 278 ; Tipton v. Locomotive Works, don. 103 U. S. 523 ; Harter v. Eemochan, ^ But as to representations in regard ib. 562; Jasper v. Ballon, ib. 745 ; San to its own incor}ioration, see Boyce v. Antonio v. MehafTy, 96 U. S. 812 ; Methodist Church, 46 Md. 359. That Coloma v. Eaves, 92 U. S. 484 ; Keni- may be a very different thing. cott v. Supervisors, 16 Wall. 452 ; « New Providence v. Halsey, 117 Moultrie «. Savings Bank, 92 U. S. 631 ; U. S. 336 ; Block v. Commissioners, 99 Marcy v. Oswego, ib. 687 ; Rogers v. U. S. 686 ; Hackett v. Ottawa, ih. 86 ; Burlington, 8 Wall. 654 : Moran v. Cromwell v. Sac, 96 U. S. 51 ; Carroll Miami County, 2 Black, 722 ; Knox V, Smith, 111 U. S. 556 ; Sherman v, Co. v. Wallace, 21 How. 546; Bissell v, Simons, 109 U. S. 735 ; Insurance Co. v. Jeffersonville, 24 How. 287. See, further, Bruce, 105 U. S. 328 ; Northern Bank Mercer County v. Hacket, 1 Wall 83 ; 470 ESTOPPEL IN PAIS. [chap. XIV. It appears unnecessary to the estoppel, in the absence of stat- ute, that the bonds should contain any recital of the perform- ance of the preliminary steps or conditions by the corporation ; ^ enough that the holder has taken for value and without notice bonds which the corporation had the power to issue. But no recital will work an estoppel if the act in question was wholly beyond the powers of the corporation ; and if part of the bonds issued were within the corporate power, and part beyond, the latter will not be made good by recital.' The estoppel applies as well against the stockholders of the corporation as against the corporation itself, where the act is within the powers of the body. Thus, a stockholder cannot allege informalities in the issue of stock, which the corporation had power to issue ;* but such person may object to an increase of stock not authorized at all by law. Even acquiescence of a stockholder would not bind him in such a case.^ Again, if a municipal corporation is estopped to question its bonds^ tax- payers will be estopped.* Gelpcke v. Dubuque, ib. 176 ; Meyer v. Muscatine, ib. 384; Von Hostrup v, Madison, 4b. 291 ; Cincinnati v. Mor- gan, 3 Wall. 276; Eminence v. Grasser, 81 Ky. 62 ; In re Romford Canal Co., 24 Ch. D. 85 ; Webb v. Heme Bay Comrs., L. R. 5 Q. B. 642 ; Fountaine v. Car- marthen Ry. Co., L. R. 6 Eq. 316. ^ See Brooklyn v. Insurance Co., 99 U. S. 362 ; Weyauwega v. Ayling, ib. 112. ' Daviess P.Dickinson, 117 U. S. 657. » Scovill V, Thayer, 105 U. S. 143, 149 ; Upton v. Tribilcock, 91 U. S. 45 ; Chubb V. Upton, 95 U. S. 666 ; Pull- man v, Upton, 96 U. S. 828. * Scovill V, Thayer, supra. * See Thatcher v. People, 98 111. 632, where a tax-payer was held estopped to question the validity of the proceed- ings of a municipality, by assisting in the passing of a vote for the execution of bonds, though notice of the meeting was defective. Cases of that kind are considered in chapter 21. As to acts of the officers of municipal corporations, see StuT^eon v. Hampton, 88 Mo. 203 ; St. Louis Ry. Co. v. Belleville, 122 IIL 376 ; Rush Co. v. State, 103 Ind. 497 ; Union School Township v. First Na- tional Bank. 102 Ind. 494. CHAP. XT.] ESTOPPEL BT CONTRACT : RECEIPT. 471 CHAPTER XV. ACKNOWLEDGMEKT OF RECEIPT. Parties may by apt terms of contract bind themselves not to question an acknowledgment of receipt of money; that is, they may bind themselves specifically, and not merely in the alternative of damages, to the admission. But such things are not common. And that an acknowledgment of receipt of money or commodities, not clearly agreed in the writing to be binding as a contract ^ or as the basis of a contract, is not gener- ally conclusive evidence between the parties of the fact stated is well settled.* The case first cited was an action by partners on a bill of exchange. The defendant in proof of payment gave in evidence a receipt The receipt was in the name of the firm, and had been written by Farrar, one of the partners. The plain- tiffs, however, contended that it had not been given bona fide, but procured for the purposes of the cause. The question was 1 8p6 Hoeger v, Chicago Ry. Co., 63 Mutual Ins. Co., 4 Big. 1. But Goit Wis. 100. V. National Ins. Co. was overruled by * For a variety of illustrations see Baker v. Union Ins. Co., su])ra; and Farrar v. Hutchinson, 9 Ad. & E. 641 ; the statement in Young u. Mutual Ins. Skaife v. Jackson, 3 Barn. & C. 421 ; Co. was only a dictum. There is, how- Graves V. Key, 3 Bam. & Ad. 313 ; ever, convincing force in the distinction Bowes V. Foster, 2 Hurl. & N. 779 ; taken in this case, and in the case from Mejirargel v, Megargel, 105 Penn. St. 25 Barb, (.see also Southern Ins. Co. v. 475 ; Van Ness v. Hadsell, 54 Mich. Booker, 9 Heisk. 606 ; Peck v. Vanden- 660; Marco v. Fond du Lac Co., 63 berg, 30 Cal. 23; Ashley ». Vlscher, 24 Wis. 212; Baker t;. Union Ins, Co. , 43 Cal. 322), between the effect of an N. Y. 283 ; Sheldon v. Atlantic Ins. acknowledgment of receipt as a simple Co., 26 N. Y. 460 ; Insurance Co. of recei]it for money, and as constituting Penn. V. Smith, 3 Whait. 520 ; Pitt v, part of a contract. *In the first aspect,' Berkshire Ins. Co., 100 Mass. 500 ; Mil- says the court in Young v. Mutual Ins. ler V. Brooklyn Ins. Co., 2 Big. 85, 757. Co., *and for collateral purposes, such But see Teutonia Ins. Co. v. Andei-son, as the recovery of the money, the ac- 77 111. 384 ; Illinois Ins. Co. v. Wolf, knowledgments may be con trad i(!ted. 87 111. 354 ; Providence Ins. Co. r. In the second, and for the purpose of Fennell, 49 111. 180 ; Goit v. National defeating the operation of the contract, Ins. Co., 25 Barb. 189 ; Young v. they cannot be contradicted.' 472 ESTOPPEL IN PAIS. [CHAP. XV. left to the jury, aud a verdict was returned for the plaintiffs. A motion for a new trial was overruled.^ Indeed, such ac- knowledgment is held not conclusive even though appended to the record of a judgment, so long as it forms no part of the judgment.^ In another case Mr. Baron Martin said that Alner v. George, just referred to in the note, was not law.^ The case before the learned baron was an action of trover. It appeared that the plaintiff being in difficulty, and fearing his creditors, had agreed with the defendant, a creditor, that there should be a pretended sale of his goods to him. An invoice was accordingly made out find a receipt given to the defendant for the sum stated to be the purchase-money, and possession was given the defendant The plaintiff was allowed to recover.* The case of Graves v. Key,* above cited, was an action on a bill of exchange, on which was written a receipt for the full amount In point of fact the money had not been paid by the ^ceptor or by the drawer, but had been paid by a person who had simply purchased the bill. The plaintiff recovered.* 1 Lord Denman, who delivered the ' Lapping v. Duffy, 65 Ind. 229. judgment, now said: *Mr. Cresswell ' Bowes v. Foster, 2 Hurl. &N. 779. cited Alner v. George, 1 Camp. 39*2 ; * Mr. Baron Martin said : * In Alner but that case is not directly applicable, r. George Lord Ellenborough said that There no doubt existed that the re- a receipt in full was an estoppel ; and eeipt had been really given by the if that be so, there would be an estop- party whose claim it affected ; but it pel here. But I apprehend that case is was alleged that third persons who had not law. The distinction between a re- an interest in the demand were injured ceipt and a release has lieen long^estab- by the transaction. Lord EUenborough lished. The fact of a release must be held that the receipt was nevertheless pleaded and put on the record. A re- binding. Here the objection is that the ceipt cannot be pleaded in answer to receipt, though signed by one of the the action ; it is only evidence on a plea firm for whom it is given', is a fraud of payment ; and where a defendant is upon the rest In Benson v, Bennett, obliged to prove payment, a document 1 Camp, 394, note ... a receipt signed not under seal is no bar as against the by the plaintiff was produce. Holton, 10 Gray, 849 ; Fox V. Whitney, 16 Mass. 118. See also Clnpp V. Hansom, 15 Maine, 84.5; Davis V. Brown, 94 U. 8. 423; Bigelow's BUls and Notes, 174, 175. # SECT. I.] CONTRACT : COMMERCIAL PAPER. 481 the drawer in the one case, and of all the prior parties in the other, is genuine. A near likeness to this estoppel is found in estoppel by mis- representation;^ but the likeness after all is superficial. Estop- pel by misrepresentation does not require any contract ; besides, in the present case there is no external misrepresentation — no representation beyond that necessarily involved in the contract itself — by which the other estoppel is characterized. But the situation here, as in the preceding chapter, is one of contract, and the subject is therefore allied to that from which we have just passed. Indeed, it is sometimes said that acceptance and indorsement are warranties of genuineness ; but that appears to be doubtful. The better view is that these acts operate as estop- pels by admission, as will be seen further on.^ The difference is material; if the case rests on warranty, properly speaking, the acceptor or indorser cannot say that the holder took with notice of the want of genuineness, while the contrary is true if it rests upon estoppel. The leading case upon the effect of accepting a bill of ex- change is Price v, Neal.^ This was an action on the case by Price to recover from Neal the amount paid to him on two bills of exchange, of which frice was drawee. One of the bills had been paid by Price without acceptance; the other was duly accepted and paid at maturity. Both bills had been forged. It was held that the action could not be maintained. Lord Mans- field said that it was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the dravjer's hand before he accepted or paid it ; but it was not incumbent upon the defend- ant to inquire into it.* Here was notice given by the defendant to the plaintiff of a bill drawn upon him, and he sends his ser- vant to pay it and take it up. The other bill he actually ac- cepts, after which acceptance the defendant innocently and bona 1 Chapter 18. * But where, hy usage or agreement, 2 See VagUano v. Bank of England, such duty is devolved upon the holder, 23 Q. B. D. 243, 257, C. A. affirming it is held that the case will he different. 22 Q. B. D. 103 ; McKleroy v. South- Ellis v. Ohio Life Ins. Co., 4 Ohio St. ern Bank, 14 La. An. 458; post, p. 491. 628. See National Bank v. Bangs, 106 See also chapter 19. Mass. 441. The point will be more * 8 Burr. 1854. fully noticed later in the chapter. 81 482 ESTOPPEL IN PAIS. [CHAP. XVT. fide discounts it. The plaintiff lies by for a considerable time after he has paid the bills, and then finds out that they were forged ; and the forger comes to be hanged. He made no objec- tion to them at the time of paying them. Whatever neglect there was, was on his side. The defendant had actual encour- agement from the plaintiff himself for negotiating the second bill from the plaintiff's having without any scruple or hesitation paid the first ; and he paid the whole value bona fide. It was a misfortune which had happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there was no reason to throw off the loss from one innocent man upon another innocent man ; but in this case, if there was any fault or negligence in any one, it was in the plaintiff and not in the defendant.* That a like rule applies to an indorser appears from the case of the State Bank v. Fearing.^ This was an action of as- sumpsit on a promissory note made by Charles Brown, payable to Thomas Jackson, Jr., and indorsed with the name of the payee and of the defendant. It was agreed that the signatures of Brown the maker, and of. the defendant, the second indorser, were genuine, and that it could be proved, if the evidence were admissible, that the indorsement of the name of Jackson, the payee, was forged ; that the note was presented by Brown to the plaintiffs for discount, in the usual course of business, and dis- counted by them for him ; that both parties were ignorant of the forgery at the time ; and that due notice was given of the non- payment of the note. The court held the evidence inadmissible.^ ^ A fortiori a person who admits that seems to he ohvious that the party de- an acceptance is in his own hand writ- fendant hy his indorsement has adrait- ing, and therehy induces another to ted the ability and the signature of all take the bill, is estopped to deny the prior parties. . . . The effect of the en- genuineness of the acceptance. Loach gngement of the indorser is that if the V. Buchanan, 4 Esp. 226 ; Goodell v. prior parties do not pay the note accord- Bntes, 14 R. I. 6^ ; infra, p. 492. ing to its tenor upon due presentment, ^16 Pick. 538. See also Alleman upon notice to him he will. It is there- V. Wlieeler, 101 Ind. 141. fore a rule upon this subject that the * Chief Justice Shaw, who delivered plaintiff is ander no obligation to prove the opinion of the court, said : ' In gen- the signature of those prior to the party eral it is not necessary for the holder to intended to be charged. It is veiy dif prove the signature of any party prior to ferent where he claims against the ao« the party whom he sues. The reason ceptor of a bill or maker of a nota SECT. I.] CONTRACT : COMMERCIAL PAPER. 483 The acceptor of a bill of exchange is not estopped to deny the genuineness of an indorsement, even of the payee's name, on the paper at the time of acceptance if the indorsement was made after the paper had passed out of the drawer's hands ; and money paid by the acceptor even to an innocent holder, under a forged indorsement, may be recovered if seasonable notice of the forgery be given.^ Such a case was presented in Canal Bank V. Bank of Albany, just cited. The plaintiffs had paid to the defendants a draft drawn on them, payable to one Bentley, whose indorsement had been forged, and the defendants were innocent holders for value. The court held the plaintiffs enti- tled to recover the money .^ They respectively promise to pay to the to them ? The issue would he idle, payee or his order, and until he has Whether Pinkney indorsed to the de- made such order by his indorsement the fendants in blank or sj^ecially, the fact plaintiff can establish no title, and to of the indorsement by the defendants prove such order he must prove the would at the trial be conclusive evi- genuineness of his signature.' dence of Pinkney*s indorsement to This doctrine concerning the right of them, and would estop them from an acceptor or indorser to deny the gen- showing what purported to be Pink- uineness of the signatures of parties is ney's indorsement was a forgery. The firmly established in the law. Horts- request is to pay to the order of the man v. Henshaw, Bigelow*s Bills and payee. When a mnn indorses such a bill, Notes, 541 ; 8. c. 11 How. 177 ; Cog- heundertakes that if the party requested gill i;. American Bank, 1 Comst. 118 ; do not pay, he will ; and he cannot deny Canal Bank v. Bank of Albany, 1 Hill, that the payee has made the order.' 287 ; Crichlow v. Parry, 2 Camp. 182 ; * Canal Bank v. Bank of Albany, 1 Story, Promissory Notes, § 880. Hill, 287; Hortsman i;. ^enshaw, 11 The rule applies to all prior signa- How. 177 ; Beeman v. Duck, 11 Mees. tures. Story, Promissory Notes, §§ & W. 261. See Bigelow's Bills and 135, 887 ; Bills of Exchange, §§ 111, Notes, 667, 668. 226, 412. The question arose in Mac- « * On the merits,* said Cowen, J. Gregor v, Rhodes, 6 El. & B. 266, for the court, * there was nothing in the whether an indorser could deny the in- nature of the transaction to conclude doTsement to himself ; and it was held the plaintiffs against showing the forg- he could not. * The declaration alleges,' ery. They had done no act giving said Campbell, C. J. * that Pinkney currency to the bill on the strength of drew a biU payable to his order and in- Bentley's name. Even had they ac- dorsed it to the defendants, and that cepted it on the day when it was drawn, the defendant indorsed it to the plain- the defendants could have holden them tiff, and that it was presented and dis- concluded only in respect to the genu- honored. The plea admits all these ineness of the drawer's name, he being allegations except the allegation of the their immediate correspondent. Chitty, indorsement by Pinkney to the defend- Bills, 836, 7th Am. ed. And the act of ants. Are the defendants, who admit payment could amount to no more, that they indorsed to the plaintiff, at Ibid. Neither acceptance nor pay- liberty to deny that Pinkney indorsed ment at any time, nor under any ciicum- 484 ESTOPPEL IN PAIS. [CHAP. XVI. A different rule, however, prevails if the drawer of a bill put it into circulation with the name of the payee indorsed.^ Horts- mau V. Henshaw was such a case. Fiske and Bradford, a firm in Boston, drew their bill of exchange on Hortsman of London, payable to Fiske and Bridge. The drawers, or one of them, placed the bill in the hands of a broker with the names of the payees indorsed upon it, for negotiation ; and it was sold to the defendants bona fide and for full value. They transmitted it to London, where it was presented, accepted, and paid at maturity. It turned out that the indorsement of the payee's name was forged; whereupon the present action was brought to recover the money paid. The court held that the plaintiff was not entitled to recover.^ stances, (a) is an admission that the first time of the acceptance. And if he has or any other indorser's name is genu- received the money from the acceptor, ine. Chitty, Bills, 628, 7th Am. ed. In and the foi^ry is afterwards discovered, point of title, then, the case of the de- he will be compelled to repay it. The fendants was the same as if the name of reason of the rule is obvious. A forged Bentley had not appeared on the bill, indorsement cannot transfer any inter> They have obtained money of the plain- est in the bill ; and the holder therefore tiffs without right, and on the exhibi- has no right to demand the money. If tion of a forged title as a genuine one. the bill is dishonored by the drawee. The plaintiffs paid their money on the the drawer is not responsible. And if the mistaken belief thus induced that the drawee pays it to a person not author- name was genuine.' ized to receive the money, he cannot ^ Hortsman v. Henshaw, 11 How. claim credit for it in his account with 177 ; Ford v. Meacham, 3 Hill (S. C.) the drawer. But in this case the bill 227; Burgess V. Northern Bank of Ky., was put in circulation by the drawers 4 Bush, 600 ; Coggill v, American Ex- with the names of the payees indorsed change Bank, 1 Comst. 118. See Bige- upon it. And by doing so they must low's Bills and Notes, 567. be understood as affirming that the in- ^ Taney, C. J. who delivered the dorsement is in the handwriting of the opinion, said : ' The general nile un- payees, or written by their authority, doubtedly is that the drawee by accept- And if the drawee had dishonored the ing the bill admits the handwriting of bill, the indorser would undoubtedly the drawer but not of the indorsers. have been entitled to recover from the And the holder is bound to know that drawer. The drawers must be equally the previous indorsements, including liable to the acceptor who paid the bill, that of the payee, are in the hand- For having admitted the handwriting writing of the parties whose names ai>- of the payees and precluded themselves pear upon the bill, or were duly author- from disputing it, the bill was paid by ized by them. And if it should appear the acceptor to the persons authorized that one of them is forged, he cannot to receive the money, according to the recover against the acceptor, although drawer's own order. Now the acceptor the forged name was on the bill at the of a bill is presumed to accept upon (a) This must be taken with some cautiozL See Hortsman v. Henshaw, infra. SECT. T.] CONTRACT : COMMERCIAL PAPER. 485 A similar question arose in 1847 in Coggill v, American Bank.^ In that case one of the drawers of the bill forged the payee's name, and then procured it to be discounted; and at maturity the plaintiff (the drawee) paid it. On discovering the forgery he sued the defendant, a bona fide holder, to whom he had paid the bill, to recover the sum paid. The court held that the action could not be maintained, basing the decision on the fact that the payee had no interest in the bill, and comparing it to a bill drawn to a fictitious person, such a bill being in efiect payable to bearer.* The cases further show that the drawee may deny the genuineness of the indorsement if the forgery occurred after the bill passed out of the drawer's hands ; ^ and thfs is the line of distinction drawn in Hortsnian v. Henshaw. The case of Beeman v. Duck ^ presents another phase of the doctrine of estoppel upon the acceptor of a bill This was an action of assumpsit upon a bill of exchange purporting to be drawn on the defendant by Bradshaw and Williams, an existing firm, payable to their order ; the paper being accepted by the defendant, and indorsed by Bradshaw and Williams to the plaintiff. The drawing and indorsement (in the same hand- writing) were forgeries. There was a plea traversing the draw- ing of the bill ; but this fact was not brought to the notice of funds of tbe drawer in his hands, and that ground defend himself against a he is precluded by his acceptance from bona fide indorsee. The insolvency of averring the contrary in a suit brought the drawer can make no difference in the against him by the holder. The rights rights and legal liabilities of the parties.' of the parties are therefore to be de- ^1 Comst. 113. termined as if this bill was paid by ^ Coojier i;. Meyer, 10 Bam. & C. Hortsman out of the money of Fiske 468 ; s. c. 6 Man. & R. 387 ; Vere v. and Bradford in his hands. And as Lewis, 3 T. K. 182; Miuetv. Gibson, Fiske and Bradford were liable to the ib. 481 ; 8. c. 1 H. Black. 569 ; Collis ' defendants in error, they are entitled to v. Emmett, 1 H. Hlack. 318 ; Phillips retsin the money they have thus re- v. Thum, L. R. 1 C. P. 463 ; Plets i?. ceived. We take the rule to be this : Johnson, 3 Hill, 112 ; Bigelow's Bills Whenever the drawer is liable to the and Notes, 667. See particularly, in ' holder, the acceptor is entitled to a regard to fictitious or non-existing pay- credit if he pays the money; and he ees, Vagliano v. Bank of England, 28 is bound to pay upon his acceptance Q. B. D. 243, C. A. afg 22 Q. B. D. 103. when the payment will entitle him to * Burchfield v. Moore, 3 £L & B. a credit in his account with the drawer. 683 ; Talbot v. Bank of Rochester, 1 And if he accepts without funds upon Hill, 295. the credit of the drawer, he must look * 11 Mees. k W. 251. See Green« to him for indemnity, and cannot upon field Bank p. Crafts, 4 Allen, 447. 486 ESTOPPEL IN PAIS. [CHAP. XVI. the court below until the jury had given their verdict upon what had been regarded the principal point in dispute. The question now arose upon the validity of the plea referred to, in an application by the plaintiff for a new trial. The court held that if the bill was accepted and negotiated by the acceptor with knowledge of the forgery, he was estopped to deny the genuine- ness of the indorsement as well as that of the drawing. But the judges inclined to the opinion that if he was ignorant of the foig- ery, he would not be precluded from denying the genuineness of the indorsement, though it was in the same hand as that of the drawer's signature.^ The fact should be observed that the estoppel of the drawee by acceptance or payment extends only to the signature.^ The acceptor may show an alteration in the body of the instrument, whether the act was before or after the acceptance,' unless it was done by the drawer before acceptance.* The point was 1 ' On the at^ment before us,' said 455. In analogy to that case the de- Mr. Baron Parke, ' it was contended bj fendant, it is said, admits by his acoept- tbe plaintiff's counsel that, the drawing ance that the biU was drawn in tiie being a forgery, the defendant by his name of Bradshaw and Williams by acceptance had undertaken to pay to themselves, or some agent authorized to any one who held the bUl by an in- draw in their name ; but it does not ad- dorsement in the same handwriting, mit that it was indorsed by themselves, according to the principle laid down or some agent authorized to indorse, in Cooper v. Meyer, 10 Bam. & C. which is a different species of authority. 468 ; 8. c. 5 Man. & R. 387 ; and it And we cannot help thinking there is was said there was evidence in the case great weight in that argument, if the that the signatures in drawing and in- defendant accepted the bill in ignorance dorsing were those of the same person, of the forgery ; but if he knew it, and If this were so, the rule ought to be intended that the bill should be put made absolute for a new trial, as the into ciroulation by a forged indorsement, question as to the identity of the signs- in the name of the same firm, by the ture has not been submitted to the jury, same party who drew it, the case seems But on the part of the defendant it is to fall within the principle of that of insisted that the case of Cooper v. Meyer Cooper v. Meyer.' The learned baron is distinguishable from the present, for added that there was some doubt whether there the drawers were fictitious ; here the bill should not have been declared they really existed, though their signs- upon as payable to bearer, according to ture was forged ; and that in such vase Gibson v. Minet, 1 H. Black. 481, and the acceptor, though he admits that the Bennett v. Famell, 1 Camp. 130, 180 c, bill was drewn by the parties by whom which cases had not been cited or this it purports to be drawn, does not admit question raised in Cooper v. Meyer, the indorsement by the same parties, — * Ante, p. 481. a doctrine which is clearly established * Clews «. Bank of New York, 80 as to bills wherein the signature is not N. Y. 418. forged. Robinson v. Yarrow, 7 Taunt. * The language of Ward 9. Allen, S SECT. I.] CONTRACT : COMMERCIAL PAPER, 487 decided in Bank of Commerce v. Union Bank.^ This was as- sumpsit to recover $1,005 paid by the plaintiffs upon a bill of exchange drawn upon them, payable to the order of J. Bonnet, and by him indorsed ; after which it passed into the hands of the defendants' principal, bona fide and for value. It appeared that the draft was originally drawn payable to the order of J. Durand for one hundred and five dollars, and that afterwards the name * Durand ' was altered to ' Bonnet,' and the word ' hundred ' to ' thousand ; ' and in this altered condition it had been paid by the plaintiffs to the defendants. It was ai^ued for the defendants that there was no rule that the banker must know the handwriting of his customer in the signature, but that the rule was that the banker should take care not to pay away his customer's money without sufficient authority for the purpose, and that it was the banker's duty to see that the bill was genuine in all respects. The attempt to establish the principle that a differefnt degree of scrutiny was required in examining the body of the draft by the person on whom it was drawn from that required in examining the signature of the drawer was fallacious, and ought to be discountenanced. But the court held the plaintiffs entitled to recover on the ground that it could not be presumed that the acceptor was familiar with the handwriting of the body of the bilL* Met. 53, especially the headnote, might uine. The forgery was committed by imply that acceptance admits the body altering the date, nmnber, amount, and of the paper entire, as it then stood ; payee's name. No case goes the length but the alteration in question in that of saying that the acceptor is presumed case had been made by the draicer, as to know the handwriting of the body of in Hortsman v. Henshaw, supra, p. 484. the bill, or that he is better able than The same may be said of Langton o. the indorsers to detect an alteration in Lazarus, 5 Mees. & W. 629. it. The presumption that the drawee ^ 8 Comst, 230. is acquainted with the drawer's signa- * ' There is no ground,' said Rug- ture, or able to ascertain whether it is gles, J. speaking for the court, 'for genuine, is reasonable. In most cases presuming the body of the bill to be it is in conformity with the fact. But in the drawer's handwriting, or in any to require the drawee to know the hand- handwriting known to the acceptor. In writing of the residue of the bill is the present case that part of the bill is unreasonable. It would in most cases in the handwriting of one of the clerks be requiring an impossibility. Such a in the office of the Canal and Banking rule would be not only arbitrary and Company in New Orleans. The signa- rigorous, but unjust. The drawee would ture was in the name and handwriting be answerable for negligence in paying of the cashier. The signature is gen* an altered bill if the alteration were 488 ESTOPPEL IN PAIS. [CHAP. XVI. Acceptance also conclusively admits the procuration to draw in the case of a bill drawn by procuration ; but it does not ad- mit a procuration to indoi'se though the indoi'sement be by the same agent.^ In Eobinson v. Yarrow, cited in the note, Staeben & Co. authorized one Henry to dmw on the defendant, which he did * per proc./ making the bill payable to the order of the draw- ers, by whom it was indorsed to the plaintiff * per proc* The defendant accepted the bill, and now resisted the payment. The question was whether the plaintiff was bound to prove the proc- uration to indorse ; and it was held he was. ' The mere accept- ance,* said Mr. Justice Park, 'proves the drawing, but it never proves the indorsement It is not at all necessary that a power given to draw bills by procuration should enable the agent to indorse by procuration; the first is a power to get funds into the agent's hands, the other to pay them out' The effect of an acceptance for honor appears to be not mate- rially different in effect from acceptance by the drawee. In Wilkinson v, Johnson ^ the plaintiffs had accepted certain bills for the honor of certain indorsers (H, & Co.), and paid over the money to the defendants, who had been the holders of the bills. The fact was discovered on the same day that the bills were forg- eries, the names of the indorsers H. & Co., among others, not being genuine. Due notice of the fact was given ; whereupon the defendants having refused to repay the money, the present action of assumpsit was brought to recover the amount And the action was sustained.^ manifest on its face.' An acceptor is defendants in time to enable them to not estopped to show that the bill is a give notice of the dishonor to the prior foreign one, contraiy to its date. Stead- parties ; which was accordingly given, man v, Duhamel, 1 Com. B. 888. The plaintiffs were called upon to pay 1 Robinson v. Yarrow, 7 Taunt. 465 ; for the honor of Heywood & Co., whose Beeman v. Duck, 11 Mees. & W. 251 ; names appeared on the bills among Garland v, Jacomb» L. R. 8 Ex. 216, other indorsers. The very act of call- Ex. Ch. ing upon them in this character was ^ 3 Barn. & 0. 428. calculated in some degree to le^en • Abbott, C. J. in delivering jndg- their attention. A bill is carried for ment, said : * The plaintiffs were not payment to the person whose name ilrawers or acceptors of the bills, nor appears as acceptor, or as agent of an the agents of any supposed acceptors, acceptor entirely^ as a matter of course. They discovered the mistake in the The person presenting very often knows morning of the day they made the pay- nothing of the acceptor, and merely ment, and gave notice thereof to the carries or sends the bill according SECT. I.] CONTRACT : COMMERCIAL PAPER. 489 Some of the reasoning of the Chief Justice in this case may possibly be broad enough to cover the case of an acceptance for the honor of the drawer. But the later cases do not sanction such a view, and it is settled law that acceptance for honor like ordinary acceptance amounts to a conclusive admission of the hand of the drawer when the acceptance was made for the drawer's honor ;^ subject, no doubt, to the like limitations as prevail in the case of acceptance by the drawee in the usual manner. Phillips v, Thurn was an action by the holder' of a bill accepted by the defendant supra protest for the honor of the drawer, acceptance having been refused by the drawee. The question raised in the first stage of the case* (for there were two stages of it) was upon the validity of a plea setting up the defence that the payee was a fictitious person, and that the de- fendant was ignorant of that fact at the time he accepted the bill. The plea was held bad. The point thus raised was not whether the acceptor supra protest was bound to know the handwriting of the drawer, but whether the acceptance had put the defendant in the position of the drawer; and it was to the direction that he finds npon it ; gence is on one side it may perhaps be so that the act of presentment informs unfit to inquire into the quantum, yet the acceptor or his agent of nothing where there is any fault in the other more than that his name appears to be party, and that other party cannot be on the bill as the person to pay it ; and said to be wholly innocent, he ought it behooves him to see that his name is not in our opinion to profit by the mis- properly on the biU. But it is by no take into which he may by his own prior means a matter of course to call npon a mistake have led the other ; at least if person to pay a bill for the honor of an the mistake is discovered before any al- indorser ; and such a call, therefore, im- teration in the situation of any of the ports on the part of the person making other parties ; that is, whilst the reme- it that the name of a correspondent for dies of all the parties entitled to rem- whose honor the payment is asked is edy are left entire, and no one is dis- ' actually on the bill. The person thus charged by laches. . . . We think the called upon ought certainly to satisfy payment in this case was a payment by himself that the name of his correspond- mistake and without consideration to a ent is really on the bill ; but still his person not wholly free from blame, and attention may reasonably be lessened by who ought not, therefore, in our opinion the assertion that the caU itself makes to retain the money.* to him in fact, though no assertion may * Phillips v. Thum, 18 C. B. ^. s. lie made in words. And the fault, if he 694 ; s. c. L. R. 1 C. P. 468 ; God- pays on a forged signature, is not wholly dard v. Merchants' Bank, 4 Ck)mst. and entirely his own, but begins at least 147 ; Story, Bills of Exchange, §§ 261, with the person who thus calls upon 262. him. And though where all the negli- ^ js C. B. N. s. 694. 490 ESTOPPEL IN PAIS. [CHAP. XVI. held that it had. And as the drawer would be estopped to say that the payee was a fictitious person, the defendant was also held estopped. ' It seems to me/ said Chief Justice Erie, ' that there is good reason for saying that that which the drawer would be estopped from denying, the acceptor for honor should also be estopped from denying. I think he is equally to admit that the bill is a valid bill.' When Phillips v. Thum came before the court the second time' it appeared that the drawee, having refused to accept, gave the person presenting the paper a letter to the plain- tiffs, intimating that the defendant would probably accept the bill for the drawer's honor. The plaintiffs took the letter and bill to the defendant, and he assuming it to be genuine accepted it for the drawer's honor; and the plaintiffs there- upon discounted it It turned out that the drawer's signature was a forgery ; but the court now held that the defendant was estopped from asserting the fact, the plaintiffs having been in- duced to part with their money on the faith of the defendant's acceptance. The English cases all show that where there are prior parties to the paper, entitled to remedies against antecedent parties, if the forgery is discovered too late to enable them to fix the liability of such parties, the acceptor will not be permitted to recover the sum paid to a bona fide holder.^ In Mather v. Maidstone, just cited, the acceptor instead of paying had given a fresh acceptance after the maturity of a previous bill drawn on him and purporting to have been accepted by him. A month later he discovered that the previous acceptance was a forgery ; but the court held him estopped to allege the fact on the ground 1 L. R. 1 C. P. 468. This seema doubtful. See Irving Bank « Cocks 0. Masterman, 9 Barn. & C. v.. W^etherald, 36 N. Y. 835 ; Merchants' 902 ; Mather v. Maidstone, 18 0. B. Bank v. National Bank, 101 Mftss. 281 ; 273 ; Wilkinson v. Johnson, 3 Barn. & National Bank v. Bangs, 106 Mass. 441. C. 428 ; Smith v» Mercer, 6 Taunt. 76. Goddard v. Merchants' Bank, 4 Comst But it is said that the strict rule held 1 47, certainly is not an anthority for in England respecting the time within the proposition, for there was no prior which notice must be given does not party to be charged in that case. And prevail in America. Canal Bank v, the same may be said of Ellis v, Ohio Bank of Albany, 1 Hill, 287, 292. See Ina. Co.« 4 Ohio St. 628, 660. 2 Parsons, Notes and Bills, 598, 599. SECT. I.] CONTRACT : COMMERCIAL PAPER. 491 that the plaintiff, a bona fide indorser, had lost his remedy against the prior indorsers. Still, a person is not bound as an acceptor of a bill bearing a forged acceptance by the mere fact that he has previously paid a bill similarly forged, if in fact he has not led the holder to believe that the acceptance of the bill sued upon was genuine.^ But if it is made to appear that there has been a regular coui'se of mercantile business, in which bills have been accepted by a clerk or agent whose signature has been acted upon as the signa- ture of the principal, then there will be ' almost conclusive evi- dence ' against the latter that the acceptance has been written by his authority.^ An exception has been made to the rule that prevents a re- covery of money paid by the acceptor of a forged draft, where the defendant becomes holder of the draft before acceptarice by the plaintiff, and where the loss had already attached; the acceptor giving notice of the forgery immediately upon the dis- covery of it.* If this is correct (and it probably is) Price v. ^ Morris V. BetheU, L. R. 5 G. P. 47 ; of the omission of any duty toward the Cohen v. Teller, 93 Penn. St. 128. defendant as the parchaser of the bill? ^ Ibid., Bovill, C. J. ; Barbell v. If the defendant had purchased the bill Gingell, 3 Esp. 60 ; Grout v. De Wolf, on the faith of the acceptance of plain- 1 R. I. 893. tiffs, or had sustained any loss in con- ' McKleroy v. Southern Bank, 14 sequence of their negligence, we would La. An. 458. See National Bank of have no difficulty in affirming the judg- North American. Bangs, 106 Mass. 441. ment of the lower court ; but such are ' The defendant became the holder of the not the facts made known to us by the draft,' said the court in the case first record.' The court cited Chitty, Bills, cited, ' before it was accepted by the 464, where the learned author says : plaintiffs, and before they had any ' If he [the holder] thought fit to rely knowledge of its existence, and conse- on the bare representation of the party quently before the defendant had any from whom he took it [the bill] there is right of action against them for its re- no reason why he should profit by the covery. The plaintiffs, therefore, had accidental payment when the loss had done no act which induced the defend- already attached upon himself, and why ant to believe the signature of the he should be allowed to retain the drawer to be genuine at the time the money when by an immediate notice bill was purchased. How, then, can it of the forgery he is enabled to proceed be said that the defendant purchased against all other parties precisely the the bill on the faith of the plaintiffs' ac- same as if the payment had not been ceptauce, or on their guaranty of the made, and consequently the payment to genuineness of the drawer's signature ? him has not in the least altered his Or how can it be said thftt the plaintiffs situation, or oocnfiioued any delay or misled the defendant at the time of the prejudice. It seems that of late upon purchase of the bill, or were then guilty questions of this nature these latter con- 492 ESTOPPEL IN PAIS. [CHAP. XVI. Neal, heretofore stated, is partly overruled. One of the bills in that case had been paid without acceptance ; but no notice of this fact was taken. The Ohio court has gone still further, and held that even in the case of payment to an innocent indorsee the acceptor may recover the money if it appear that by the settled course of busi- ness between the parties or by a general custom of the place the holder took upon himself the duty of exercising some material precaution to prevent the loss, and failed to perform. that duty.^ And it is held in Massachusetts that if the holder indorse the paper (for collection) before it is presented to the drawee for payment, the latter can recover the money paid by him, on the ground that the holder's indorsement tended to put the drawee off his guard ; such an act being an assertion of the genuineness of the bilL^ So too if the owner of the paper on presenting it to the drawee withhold from him information important to the drawee upon the question of genuineness, the estoppel will be removed.^ 9 Acknowledging a signature as one's own works of itself, it should seem, an estoppel in favor of a person to whom the acknowledgment is made, or for whom it was intended, if he is induced thereby to purchase the paper.* Indeed, it has been held that where a person receives from another paper purporting to be his (the receiver's) own paper, as genuine, and passes the amount to the credit of such person, the party receiving cannot, after any considerable lapse of time, recover the amount so credited by alleging that the paper was forged * In the case siderations have influenced the court in ^ Goodell v. Baten, 14 R. I. 65 ; determining whether or not the money Leach v. Buchanan, 4 Esp. 226 ; Cohen shaU be recoverable back ; and it will i;. Teller, 93 Penn. St. 128 ; Rudd v. be found on examining the older cases Matthews, 79 Ky. 479. See, however, that these mere facts afford a distinc- Eoons v. Davis, 84 Ind. 387, 389, which tion, and that upon attempting to recon- may be doubted. A party must be cile them they are not as contradictory bound to know whether a signature is as might on first view have been sup- his own, at least if he has an opporta- posed.' nity to see the writing. And in a case ^ £llis V, Ohio Ins. Co., 4 Ohio St. of this kind there may well be a war- 628. ranty of genuineness, so as to cut off ^ National. Bank of North America any right of the vendor to say that the V. Bangs, 106 Mass. 441. purchaser kne^ the facts. * First National Bank v. Bicker, 71 ^ Bank of United States v. Bank of III. 489. Geoigia, 10 Wheat. 333. See Oddie v. SECT. I.] CONTRACT : COMMERCIAL PAPER. 498 cited the Bank of Georgia having originally issued the paper in question, it was in the course of circulation fraudulently altered, and subsequently found its way into the Bank of the United States. The latter then presented it to the former, which re- ceived it as genuine and placed it to the general account of the Bank of the United States as cash by way of deposit. The forgery was discovered nineteen days afterwaitls, upon which notice was given and a tender of the paper made to the Bank of the United States, and refused. Both parties were equally innocent, and it was not disputed that the Bank of the United States was a bona fide holder for value. The Bank of Georgia now sued to recover the amount of the deposit. But the court held that the action could not be maintained.^ According to the better authorities, one who passes to another National Bank, 45 N. Y. 735, 7l2 ; point of view the notes must be deemed Tyler v. Bailey, 71 111. 34, holding this to have been accepted by the defendants rale not to apply to government ofiScers as genuine notes, and payment to have receiving land warrants. been promised accordingly. Credit was 1 * The. modem authorities,* observed given for them as cash by the defendants Mr. Justice Story in delivering judg- for nineteen days, and during all this ment, ' certainly do in a strong manner period no right could exist in the plain- assert that a payment received in forged tiffs to recover the amount against any paper or in any base coin is not good ; other person from whom they were re- and that if there be no negligence in ceived. By such delay, according to the party, he may recover back the con- the doctrine of Lord Chief Justice sideration paid for them, or sue upon Gibbs in Smith v. Mercer, 6 Taunt. 76, his original demand. . . . But without the prior holders would be discharged ; entering upon any examination of this and the case of the Gloucester Bank ». doctrine it is sufficient to say that the The Salem Bank, 17 Mass. 83, adopts present is not such a case. The notes the same principle ; so that there would in question were not the notes of another be a loss produced by the negligence of bank, or the security of a third person, the defendants. But waiving this nar- but they were received and adopted by rower ground, we think the case may the bank as its own genuine notes in be justly placed upon the broad ground the most absolute and unconditional that there was an acceptance of the manner. They were treated as cash, notes as genuine, and that it falls di- and carried to the credit of the plaintiff rectly within the authorities which gov- in the same manner, and with the same em the cases of acceptances of forged general intent, aa if they had been gen- drafts. If there be any difference be- nine notes or coin. . . . But if the tween them, the principle is stronger present case is to be considered, as the here than there ; for there the acceptor defendant's counsel is most solicitous to is presumed to know the drawer's sig- consider it, not as a case where the not«s nature. Here a fortiori the maker must have been paid, but as a case of credit, be presumed and is bound to know his as cash, upon the receipt of them, it own notes.' will not help the argument In that J 494 ESTOPPEL IN PAIS. [CHAP. XVI. for value and without notice a negotiable bill, note, or check, without indorsing the same, is still deemed in law to have as* serted to the purchaser the genuineness of the whole paper as it stands.^ This, however, is not (though at first it may resemble) a case of estoppel, for the vendor of the paper does not seek to deny the truth of any affirmation. He denies making any affirmation at alL It has sometimes been supposed that negligence on the part of the drawer of a bill or check, or of the maker of a note, in leaving a blank which has been so filled as to escape detection, may have the effect to estop such party to allege that the paper has been altered.^ This notion started from a misconception of Young V. Grote.^ That was a case of the proper adjustment of a loss, between the drawer and the acceptor, and merely decided that the result of the act of the drawer in carelessly leaving a blank after the words expressing the sum payable should be laid at his own door, and not charged to the acceptor who had inno- cently paid the forged bill. It has been repeatedly shown that the case was not based upon estoppel,^ even if it can be sustained at all (for it is not the natural result of leaving a blank that a forgery should be committed) ; * and the better authorities agree that no estoppel can exist upon any such facts to prevent the party, drawer of a bill or maker of a note, from setting up the alteration.® This assumes, of course, that the paper had been * Bigelow's Bills and Notes, 168. Bank of England, 21 Q. B. D. 160, C ^ Rainbolt v, Eddy, 34 Iowa, 440 ; A. ; Arnold v. Cheque Bank, 1 C. P. McCranier u. Thompson, 21 Iowa, 249 ; D. 578. These cases are considered in McDonald v, Muscatine Bank, 27 Iowa, chapter 19. 319; Capital Bank v. Armstrong, 62 ^ See Merchants of the Staple o. Bank Mo. 59 ; Iron Mountain Bank v. Mur- of England, 21 Q. B. D.i60, 176, Bowen, dock, ib. 70 ; Redington r. Woods, 45 L. J. ; Vagliano v. Bank of England, 22 Cal. 406 ; WorraU v. Gheen, 89 Penn. Q. B. D. 10 ; aflBrmed on appeal, 83 St. 888 ; Garrard v. Haddan, 67 Penn. Q. B. D. 243. These cases show that St. 82 ; Phelan v. Moss, ib. 59 ; Bige- negligence, to work an estoppel in such low's Bills and Notes, 574. cases, must be immediately connected ' 4 Bing. 253. with the transaction which followed. * Swan V. North British Co., 2 Hurl. See, further, chapter 19. & C. 175, 189, 190 ; Halifax Union v, • English cases, supra, note 4, and Wheelwright, L. R. 10 Ex. 183, 192 ; authorities there citeil ; Holmes ». Greenfield Bank v. Stowell, 123 Mass. Truraper, 22 Mich. 427 ; Greenfield 196,200,201. See also Seton V. Lafone, Bank v. Stowell, supra, and the eases 19 Q. B. D. 68, C. A. affinning 18 Q. B. therein reviewed. D. 139 ; Merchants of the Staple v. SECT, II.] CONTRACT : COMMERCIAL PAPER. 495 delivered as a completed instrument ; it has nothing to do with the similar appearing case of violations of confidence by the wrongful filling of blanks in paper not completed.^ That is a case of agency. § 2. Capacity. The execution of a negotiable note estops the maker to deny the existing capacity of the payee to indorse the paper.* The case cited was an action of assumpsit by the indorsee of a prom- issory note against the maker, to which the defendant pleaded that the payee had, before the note was made, become a bankrupt and that his property had passed to assignees, whereby the right to indorse the note had become vested in them, so that his in- dorsement of the paper was void. But this was held an inad- missible defence, though the jury found that the indorsement had been made without the consent of the assignees • In like manner, the acceptor of a bill is estopped to say that the drawer and payee was a married woman, or otherwise incom- 1 See Bigelow's Bills and Notes, 571 ficient to transfer the property in the et seq. note. The defence now set up is that ^ Drayton v. Dale, 2 Bam. & C. 293 ; although he has issued a security to the Vagliano v. Bank of England, 23 Q. B. world importing on the face of it that D. 248, 257 ; and cases infra. Where Clarke was capable of making such an shares of stock are transferable by the order, yet that in fact he was incapable, vendor's signature to a blank transfer, Now, this is a fraud upon the public, he is estopped to deny the authority of It is a general' principle applicable to all the buyer to insert his name therein negotiable securities that a person shall as the transferee. Colonial Bank v. not dispute the power of another to in- Hepworth, 36 Ch. D. 86, Chitty, J. dorse such an instrument when he as- This was' a case of a contest between serts by the instniment which he issues two innocent purchasers for value of to the world that the other has such the same stock, in which the party power.' The same ground substantially prevailed whose name was finally in- was taken by Holroyd, J. The learned serted in the blank transfer. jii^^l^ ci^s the case of Taylor r. Croker, * Abbott, C. J. took the ground that 4 Esp. 187, showing that the same prin- as it did not appear that the assignees ciple applies to acceptance. In this case had interfered or made any claim, the a bUl was drawn by infants. The de- payee had a right to indorse. But the fendants accepted the bill, and the in- better ground, it would seem, was stated fants indorsed it Lord EUenborough by Bayley, J. ' This is an action,' said held that as the defendants had by their he, ' upon a note payable to Clarke, acceptance admitted the competency of or to the order of Clarke. The defend- the infants to indorse, they should not ant therefore by making such note in- now be permitted to say that they were tlmates to all persons that he considers incompetent. See Jones v. Darch, 4 Clarke capable of making an order suf- Price, 300. 496 ESTOPPEL IN PAIS. [CHAP. XVI. petent.^ In a case already cited ^ it was held by Lord Abinger that the estoppel arose even though the drawer was a bankrupt before the bill was executed ; and the doctrine has been con- firmed in the tjueen's Bench, so that no doubt can now exist ^ Smith V, Marsack, 6 G. B. 486. known of Her coverture before the note 'In support of a contrary doctrine,' was indorsed to him. In Prince v. Bra- said W^ilde, C. J. in deliyering judg- natte, it was certainly assumed by the ment in Smith v. Marsack, supra, ' the court as well as by the counsel on both cases of Connor v. Martin, 1 Strange, sides that such a plea as the present 616, Barlow v. Bishop, 1 East, 432, would be a good answer to the action ; and Prince v. Brunatte, 1 Bing. N. C. and the same observation arises with re- 435, 8. c. 1 Scott, 342, were cited on spect to the case of Cotes v. Davies, 1 the argument by the counsel for the de- Camp. 485, and that of Prestwick v. fendant. In Connor v, Martin, as re- Marshall, 7 Bing. 565 ; s. c. 5 Moore k ported in Strange, the plaintiff declared P. 513. But in none of these cases does on a note made to a feme covert, and it appear that the point now under con- indorsed by her to him ; and on aigu- sideration was ever made, viz. that the ment judgment was given for the de- case falls within the general principle fendant, the right being in point of law — which is stated by Bay ley, J. in his in the husband, and the wife having no judgment in Drayton v. Dale [ante, p. power to dispose of it. But this case 495], as applicable to all negotiable se- was cited by Dennison, J. Rawlinson curities — that a person shall not dispute V. Stone, 3 Wils. 1, 5, from a note taken the power of another to indorse an instru- by himself in court ; and it appears from ment when he assei-ts by the instrument that learned judge's statement that the that the other has such power. And we promissory note in question had been can discover no reason why this prin- given to the wife before marriage. Bar- ciple should not be applicable ; and if low V. Bishop is certainly a direct au- it is, it appears to us to govern the thority for the position that if a note is present case, and to prove that the plea drawn payable to a woman or order, and in question is bad. It need scarcely be her indorsee sues the maker, he may set added that in so deciding we do not up as a defence that she was a married mean at all to impugn the proposition woman, though he knew her to be such that if a bill or note is made payable to at the time he made the note. But it the order of a married woman the prop- was observed by Lord Abinger in Pitt v, erty in it will pass by the indorsement Chappelow, 8 Mees. & W. 616, that in of the husband, or he may sue on it. Barlow v. Bishop the plaintiff must be either joining his wife as a party to the taken to have known the fact of the action, or in his own name at his option, husband's property in the bill, and And consequently it cannot be denied therefore could not take an assignment that the defendant may possibly be of it from the wife. Indeed, it appears compelled to pay the bill in question from the report of the case at nisi prius twice. But this is a consequence which in Espinasse, 3 Esp. 266,. that the wife follows from his own act of accrediting had given a previous note for the money the capacity of a woman to indorse, by in her own name, and that the note in accepting a bill payable to her order, question was given in consequence of who in trath was incapable.* such former note not being negotiable, ^ Pitt v. Chappelow, 8 Mees. k W. which appears to favor Lord Abinger's 616. 8upix)sition that the plaintiff must have SECT. II.] CONTRACT : COMMERCIAL PAPER. 497 m upon the point.^ In this case, assumpsit by a bona fide indorsee against the acceptor of a bill, the defendant pleaded that the drawer was an uncertificated bankrupt befoi*e the acceptance was given. But the court on demurrer held him estopped.^ The same ruling was again made by Mr. Baron Parke, in Hallifax v. Lyle.^ • This was an action on a bill of exchange against- the acceptors, who pleaded that the drawers (who were also payees and indorsers) were a body corporate having no authority to draw, indoi*se, issue, or negotiate bills of exchange. But the plea was held bad on demurrer* This estoppel in respect of capacity, however, appears to be affirmative only, not prospective and promissory. Hence, should the payee have become wholly incompetent at the time of his indorsement, supposing the act to be substantially after ^ the execution of the paper by the maker or the signature of the acceptor, the maker or acceptor would be permitted to set up the fact in bar of the indorsee's right of action. Still, if this subsequent incapacity of the payee is not complete, but partial only, so that his or her indorsement is but voidable and not void, then, it seems, the indorsement will pass a title that will be good until properly repudiated. Thus, though it has some- times been declared that the contract of a lunatic is absolutely void,^ unless entered into during a lucid interval, the better opinion appears to be that it is voidable only ; ^ and in this view 1 Braithwaite v. Gardiner, 8 Q. 6. bankrupt, himself brought the action. 473. Wightman, J. said tliat the answer ^ Lord Denman, C J. observed : which availed against him as a plain- ' Lord Abinger was a high authority on tiff could not serve an acceptor who of subjects of this kind. It is clear what his own authority had made the bill of his opinion was on the point of estoppel the bankrupt negotiable, and was sued in Pitt V. phappelow, 8 Mees. & W. 616; upon it by a bona fide holder, and I think it rests on sound princi- ' 8 Ex. 446. pies. In this case all parties knowing ^ Sanderson v, Collman, 4 Man. & the bankrupt's situation the defendant Q. 209, was distinguished, accepts a bill drawn by him. He there- ^ Qurere in regard to an indorsement by admits that the bankrupt had power made by the payee of a bill be/ore ac- to draw upon him ; and therefore on a ceptance ; the warranty is of present short and simple ground, which is al- capacity. ways the best, I am of opinion that the * Rogers v. Black well, 49 Mich. 192. plaintiff has a right to maintain the ^ Carrier v. Sears, 4 Allen, 336 ; action.' Kitchen v. Bartsch, 7 East, Allis o. Billings, 6 Met. 415 ; Arnold 53, was distinguished on the ground v. Richmond Iron Works, 1 Gray, 434 ; that there the drawer, who was the Burke v. Allen, 29 N. H. 106; Ash- 32 498 ESTOPPEL IN PAIS, [CHAP. XVI. r his indorsement will pass a title to a bona fide purchaser for value until the act has been duly repudiated by his guardian or other representative. Hence, until repudiation so made, it would be of no avail to the acceptor of a bill to say that the payee, though sane when the bill was accepted, was insane when he indorsed it.^ * Indorsement appears to work a sort of warranty of capacity, in regard to prior parties ; that is, the case is not affected by the fact that the indorsee may know that one of the prior parties is in fact incompetent.^ The case cited was an action by the indorsee of a note against an indorser. The note had been executed by two married women, of which fact the plain* tiff had been aware when he took the paper. The incapacity of the makers to contract was now alleged in defence by the indorser ; but judgment was given for the plaintiff. So too the guarantor of a bond perhaps warrants, but certainly is es- topped to deny, the competency of the makers of it^ Whether accepting a bill or making a note warrants, or only admits by way of estoppel in pais, the capacity of the payee to indorse does not appear to have been actually adjudicated.^ The case of indorsement clearly does not decide the question ; indorse- ment is equivalent, generally speaking, to drawing a bill, and hence of necessity cuts off any question concerning prior pai^ ties. And there is ground for doubting whether acceptance can be treated as a warranty and not merely an estoppel in regard to the payee's capacity.^ It may be added that sureties upon official bonds executed by de facto officers are estopped to deny (do they warrant ?) the proper execution of the bonds.® crafl v« De Armond, 44 Iowa, 229 ; of fictitiouB payees is concerned, the Riggan r. Qreen, 80 N. Car. 286 ; 2 matter is shown by Lord Justice Bowen, Kent, 451. in a very instructive opinion, to rest on ^ Carrier v. Sears, 4 Allen, 386, ex- grounds of estoppel. Vagliano v. Bank plaining Peaslee v. Bobbins, 3 Met. 164, of England, 28 Q. B. D. 248, 257, apparantly contra. And see Burke v, et seq. Allen, 29 N. H. 106, a doubtful case in * See Vagliano v. Bank of England, regard to infancy. supra. The language of warranty has ' Erwin v. Down, 15 N. Y. 575. been loosely used as to such cases. But see Barlow v. Bishop^ supra, p. * State v. Cooper, 53 Miss. 615 ; 496. Jones o. Scanland, 6 Humplu 195; • Remsen v. Graves, 41 N. Y. 471. People «. White, 24 Wend. 520 ; Ste- ^ So far as the peculiar English law phens v. Crawford. 1 Kelly, 574 ; 8. C. SECT, m.] CONTRACT : COMMERCIAL PAPER. 499 § 3. Certification of Checks. The certification of checks and the like acts bear some re- semblance to those above considered.^ Indeed, so far as the ques- tion of the right of the certifying party to set up an alteration is concerned, the law is no doubt the same as prevails in regard to the acceptance of a bill. Certification conclusively admits the genuineness of the drawer's signature, with the same limitations, it seems, that apply to acceptance ; it does not admit the genu- ineness of other signatures or of the body of the check.* The law in regard to admitting the capacity of the drawer to draw and of the payee to indorse is also, it seems, the same in both cases. But there is another case of a different nature. An estoppel arises where the teller or cashier of a bank certifies verbally or in writing ^ that a check or draft drawn upon the bank or a note payable at the bank is ' good,' and the party presenting the paper, relying upon the certification, has been led to change his position or course of action ; but not if there has been no change of posi- tion. In Irving Bank v. Wetherald mistake in the state of funds of the party whose note was certified as good was discovered on the very day when the certificate was given, and immediate^ notice was given to the presenting bank and proper steps taken to charge the defendants, who were indorsers. The action was by the certifying bank^ which had become the holder, against the indorsers ; and it was held that the defendants wei'e liable.^ 3 Kelly, 499 ; Iredell v. Barber, 9 IrecL « Irving Bank v. Wetherald, 86 250 ; Green ». Wardwell, 17 111. 27a N. Y. 385. ^ A certificate of stock in a corpo- * In delivering judgment in this case ration, under seal, and signed by the Hunt, J. said : ' Both the judge at the proper officers, estops the corporation circait and the general term were of the towards innocent purchasers for value opinion that the notice by the plaintifls to say that the stock was irregularly to the Seventh Ward Bank [which had issued, so far atleast as to make the cor- presented the paper] of the mistake in poration responsible for the value of the certifying Wilson's check to be good, Ktock where for any reason the possessor before any steps had been taken or any cannot be recognized as a stockholder, measures omitted by the Seventh Ward Commonwealth v, Reading Bank, 187 Bank, and while there was still time to Mass. 481, 440, distinguishing Moores fix all the parties upon the note, re- V. Citizens' Bank, 111 U. S. 156. lieved the plaintiffs from their liability ^ Clews 0. Bank of New York, 89 on the certificate. In this opinion I N. Y. 418, 422 ; Espy v. Bank of Cin- concur. Such a certificate possesses no cinnati, 18 Wall. 604. extraordinary or hidden power. It 600 ESTOPPEL IN PAIS. [CHAP. XVI. In Massachusetta it is held that the certification of checks is not within the inherent power of the office of teller, so as to bind the bank to pay the amount of it to any person, though a bona fide holder.^ But in New York it is held that a bona tide holder for value of a negotiable check certified to be good by the paying teller of the bank on which it is drawn, though his authority to certify is limited to cases where the bank has funds of the drawer to meet the check, can recover of the bank the amount of the check notwithstanding the fact that the drawer had no funds in the bank and the certification by the teller was in violation of his duty.' And this decision has been followed by the Supreme Court of the United States in a recent case.^ would impose no greater liability than to accept and to act npon the corrected itfl terms fairly require. . . . The cor- information, if there were time and rectness of this certificate is a matter opportunity so to do. I agree with the which the certifying bank has the means courts below that the plaintiffs qiigfat of knowing, and is bound to stAte cor- have stopped at that point, and there rectly. If the presenting bank relies would have been no liability on their upon its accuracy, and fails to chai^ge part to the Seventh Ward Bank.' the indorsers, as upon non-payment on ^ Mussey t7. Eagle Bank, 9 Met 806. presen^tion, the certifying hanik. is es- * Farmers' Bank v. Butchers' Bank, topped from denying the truth of its 16 N. Y. 125; Continental Bank v. statement Having asserted of its own National Bank, 50 N. Y. 575. knowledge that the maker has funds in * Merchants' Bank v. State Bank, its bank to meet the note, and the pre- 10 Wall. 604. In the New York case senting bank having omitted to chaige above referred to Mr. Justice Selden, its indorsers in reliance upon such who delivered the opinion, having re- statement, the certifying bank will not marked that in the case of funds a cer- be permitted to go behind its own state- tification by the teller would be proper, ments. The teller of the bank is the said : * But it is insisted that hia power proper officer to make this statement, extended only to cases where the bank and his statement binds the bank, had funds in hand, he having been ex- whether accurate or erroneous. Meads pressly prohibited from certifying in V. Merchants' Bank of Albany, 25 N. Y. the absence of funds, and hence that 143 ; Farmers' & M. Bank v. Butchers' the bank is not bound. It may be k D. Bank, 16 N. Y. 125. In the pres- doubted whether such a prohibition ent case the Irving Bank discovered its adds anything to the restrictions which error in stating that it had funds for the would otherwise exist upon the powers payment of Wilson's note in sufficient of the agent. A teller acting under a time to prevent any loss in consequence general power to certify chocks would of the error. It immediately notified be guilty of an excess of authority, and the Seventh Ward Bank of the error, a clear violation of duty, if he certified and in time to enable it to make a pre- without funds. The powers of the sentment if necessary and to chai^ the cashier himself or other principal finan- indorsers. No damage, therefore, could cial officer of the bank would no doubt accnie to the latter bank from the erro- be subject to the same limitation. To neous information. They were bound certify a check when the bank has no SECT. III.] . CONTRACT : COMMERCIAL PAPIER. 601 In the case referred to as decided by the Supreme Court of the United States^ the checks had been certified as good by funds to meet it is to make a false rep- their agents, and admits of no qnalifica- reseutatioQ ; and neither the incidental tion of this general rule except where the l)ower of the cashier nor a general power agent has been apparently clothed with conferred upon any other officer could an authority beyond that actually con- be construed to authorize that. Hence ferred. But this proposition is too broad if a bank is holden in any case upon a to be sustained. Principals have been certificate of its cashier that a check repeatedly held responsible for the false is good when it has no funds of the representations of their agents, not on drawer, it is not because the cashier is the ground that the agents had any au- deemed authorized to make such a cer- thority either real or apparent to make tificate, but because the bank is bound such representations, but for reasons en- by his representation notwithstanding tirely different. In Hem v, Nichols, 1 it is false and unauthorized. It would Salk. 289, the leading case on the sub- seem therefore that the defence insisted ject, where an agent authorized to sell upon here would Eave been equally avail- a quantity of silk had made certain able if the checks in question had been fraudulent representations by which the certified by the cashier himself. It purchaser was deceived, the principal might then have been urged with truth was held liable. Lord Holt there said : that the cashier had violated his duty '* Seeing somebody must be loser by this and exceeded the proper limit of his deceit it is more reasonable that he that powers in making the certificate ; and employs and puts a aynfideriee in the de- if the argument be sound that the prin- ceiver should be a loser, than a stranger." cipal is in no case bound unless the act The principle of this case has never, I of the agent is within the powers either think, been overruled, but on the con- actually or apparently conferred upon tiary has been repeatedly approved and him, the bank would not be holden in confirmed. It wiU be found directly such a case. ... It will be seen that applicable to the present case. The if these views are correct, the present certificate of the teller is a positive rep- case does not turn in any degree upon resentation that the bank has funds to the rules applicable to special agencies, meet the check. If that representa- but that the question would have been tion is false, who ought to bear the loss? precisely the same if the check had been The reasoning of Lord Holt in the case certified by the cashier or other prin- of Hem v, Nichols applies here with cipal financial officer of the bank. As peculiar force. The bank selects its they may, however, admit of doubt, I teller and places him in a position of shall treat the case as one of an agency great responsibility. The trust and specially restricted, and shall simply in- confidence thus reposed in him by the quire whether a bona fide holder for bank lead others to confide in his in- value of a negotiable check certified tegrity. Persons having no voice in by a special agent whose authority is his selection are obliged to deal with limited to cases where the bank has the bank through him. If, therefore, funds of the drawer in hand can en- while acting in the business of the force payment of the check, provided bank and within the scope of his em- the bank has no such funds. . . . The ployment so far as is known and can be defence assumes that principals are seen by the party dealing with him, he bound only by the authoiized acts of is guilty of misrepresentation, ought not 1 Merchants' Bank «. State Bank, 10 Wall. 604. 502 ESTOPPEL IN PAIS. [CBAP. XYI. the cashier of the bank. Mr. Justice Swayne, in delivering the judgment^ observed that estoppel in pais presupposes an error the bank to be held responsible f It is ferent. That is a fact which a stranger worthy of consideration that the fact who takes a check certified by the teller misrepresented in this case is not only cannot be supposed to have any means one peculiarly within the knowledge of of knowing. Were he held bound to the agent, but one with which he is ascertain it, the teller would be the most made acquainted by means of the posi* direct and reliable source of knowledge, tion in which he is placed by the bank, and he already has his written repre- and which it is his especial province and sentation upon the Uuce of the check, duty to know, and which could scarcely If, therafore, one who deals with an be definitively ascertained except by ap- agent can be permitted to rely upon the plication to him. These circumstances representation of the agent as to the ex- would seem to bring the case decidedly istence of a fact, and to hold the prin- within the principles adopted in Hem cipal responsible in case the representa- V, Nichols, and in the subsequent de- tion is false, this would seem to be such cisions based upon that case. This con- a case. It is, I think; a sound rule that elusion is in no respect in conflict with where the party dealing with an agent that doctrine of the law of agency which has ascertained that the act of the agent makes it the duty of all persons dealing corresponds iu every particular, in rpgard with a special agent to ascertain the ex- to which such party has or is presumed tent of his powers. It is conceded that to have any knowledge, with the terms every one taking the checks in question of the power, he may take the repre- would be presumed to know that the sentation of the agent as to any extrin- teller had no authority to certify with- sic fact which rests peculiarly within out funds. But this knowledge alone the knowledge of the agent, and which would not apprise him that the certi- cannot be ascertained by a com{)arison ficate was defective and unauthorized, of the power with the act done under To discover that, he must not only have it. The familiar case of the giving of a notice of the limitations upon the powers negotiable partnership note by one of ti.e of the teller, but of the extrinsic fact that partners for his own individual benefit the bank had no funds ; and as to this affords an apt illustratiou of this rule, extrinsic fact, which he caimot justly Each of the partners is the agent of the be presumed to know, he may act upon partnership as to all matters within the the representation of the agent. There scope of the partnership business, and is a plain distinction between the terms can bind the firm by making, indorsing, of a power and facts entirely extraneous and accepting bills and notes in such upon which the right to exercise the au- business ; but he has no more authority thority conferred may depend. One who than a mere stranger to execute such deals with an agent has no right to con- paper in his own business or for the ac- fide in the representation of the agent commodation of others. If he gives the as to the extent of his powers. If, there- partnership note or acceptance for his fore, a person knowing that the bank has own debt, it is void in the handa^f any no funds of the drawer should take a party having knowledge of the cousidera- certified check upou the representation tion for which it is given ; but when of the cashier or other officer by whom negotiated to a bona fide holder, the the certificate was made that he was firm is precluded from questioning the authorized to certify without funds, the authority of the partner and is effect- bank would not be liable. But in re- ually bound. The cases in this state gard to the extrinsic fact whether the by which this doctrine is illustrated bank has funds or not the case is dif- and established are numerous and uni- SECT. III.] CONTRACT : COMMERCIAL PAPER. 503 or a fault implying an act in itself invalid The rule proceeded upon the consideration that the author of the misfortune should not himself escape the consequences and cast the burden upon form. Livington v. Hastie, 2 Gaines, to facts especially within tlie agent's 246 ; Lansing v. Gaine, 2 Johns. 300 ; knowledge. The giving a note in the Lavcrty v. Burr, 1 Wend. 629 ; Wil- partnership name by one of the partners liaitisv Walbriige, 3 Wend. 415 ; Boyd is a virtual representation that it is i;. Plumb, 7 Wend. 809 ; Gausvoort v, given in the partnership business, and Williams, 14 Wend. 133 ; Joj'cer. Wil- if negotiable, the representation is Hams, ib. 141 ; Wilson v, Williams, ib. deemed in law to have been made to 146 ; Gatskill Bank v. Stall, 15 Wend, every subsequent bona fide holder of 364; 8. c. 18 Wend. 466. it will be the note. The State of Illinois v. De- found difficult to distinguish these cases lafield, 8 Paige, 527, s. c. in eiTor, 2 in principle from that now before the Hill, 159, is another illustration of the court. Every jierson taking the nego- same principle. An agent of that state tiable note or acceptance of a partner- was authorized to dispose of cei'tain ship executed by one of the partners in bonds, but was not to sell them be- the name of the firm is bound to know low par or on credit. He sold them to the extent of the partner's authority to Delafield on time and at a sacrifice. The bind the firm ; but this obligation does state filed a bill against Delafield for re- not extend to the consideration for which lief, and applied to the Court of Chancery the note or acceptance was given. If for an injunction to restrain tlie defend- given for the private debt of one of the ant from negotiating the bonds on the partners or for the accommodation of ground that if negotiated the state would third persons, all the cases agree that be liable to pay them. The defendant's the burden of proving the holder's counsel insisted that if the bonds were knowledge of that fact rests upon the void in the hands of Delafield, they partnership. That the execution is by would be equally so in the hands of an agent is as apparent upon the face of any person to whom he might trans- the paper in such cases as in that of a fer them. The Chancellor nevertheless ceitified check ; because a partnership granted the injunction, saying that if can only act in its pflrtnership name the securities should pass into the hands through agents. . . . The question is of a bona fide holder, the state would not in such cases whether the principal be equitably and legally bound to pay is bound by the unauthorized act of the them. On appeal to the Court for the agent, but whether he is estopped by Coirection of Errors the decision of the the representation of the agent from Chancellor was affirmed by a nearly una- disputing facts which show that the act nimous vote. It would be difficult, I was authorized. There is no analogy be- think, to discover any valid distinction tween these partnership cases or the in principle between this case and the case before the court and cases where one we are considering. The purchaser of the ]mf)er is forged. The fact of the the bonds from Delafield would equally agency and the trust and confidence with Delafield himself be presumed to Rposed by the principal in the agent know the limits of the authority con- create a broad line of distinction be- ferred u|ion the agent; but it must tween them ; and it is this trust and have been held that he would not be confidence which constitute the founda- bound to inquire as to the extrinsic tion of the liability, and which justify facts attending the sale or negotiation the party dealing with the agent in re- of the bonds.' But the better ground ia lying upon his representation in respect agency, not estoppeL 604 ESTOPPEL IN PAIS. [CHAP. XVI. another.^ The cashier had gone to the paying bank ; and upon the faith of his acts and declarations the bank had parted with its money. The misfortune occurred through the cashier of the certifying bank, and the loss should fall upon that bank. In a subsequent portion of his opinion the learned judge said that by the law merchant of this country the certificate of the bank that the paper was good was equivalent to acceptance. It implied that the check was drawn upon sufficient funds in the hands of the drawee, that they had been set apeurt for its satisfaction, and that they should be so applied whenever the paper was pre- sented for* payment. It was an undertaking that the check was good then, and should continue good ; and this agreement was as binding on the bank as its notes of circulation, or a certificate of deposit payable to the order of the depositor. The object of the certification was to enable the holder to raise money ; the transferee took it with the same readiness and sense of security that he would have taken the notes of the bank; and it was available to him for all the purposes of money. The cer- tifying bank intended these consequences, and it was liable accordingly.^ Auy language, it has indeed been said, whether verbal or written, employed by an officer of a banking institution whose duty it is to know the financial standing and credit of its custom- ers, representing that a check drawn upon it is good and will be paid, estops the bank thereafter as against a bona fide holder of the check from denying the want of funds to pay the same.^ § 4. Transfer by Indorser after Liability fixed. A case of estoppel arises also where an indorser, whose lia- bility has been fixed by notice of non-paymeut, again becomes » Swan r. North British Co., 7 Hurl. 624; s. c. 16 N. Y. 125; Meads r. & N. 603; 8.0. 2 Hurl. & C. 175; Merchants' Bank, 25 N. Y. US ; Brown Hern v. Nichols, 1 Salk. 289. v, Leckie, 48 111. 497 ; Oirard Bank o. ^ The following authorities were cited Bank of Penn., 89 Penn. St. 92. See in 8up|>ort of the ruling : Bickford v, silso Clarke National Bank v. Bank of First National Bank, 42 111. 238 ; Alhion, 52 Barb. 592. Willets V. Phcenix Bank, 2 Duer, 121 ; > Pope o. Bank of Albion, 59 Barb> Bamet v. Smith, 80 N. H. 256 ; Farm- 226, 288. era' Bank v. Butchers' Bank. 1 4 N. Y. SECT. lY.] CONTRACT : COMMEBaAL PAPEB. 605 possessed of and negotiates the paper upon a representation of having received due notice of dishonor. The late case of St John V, Roberts ^ will illustrate th^ point. This was an action against the defendants as indorsers of a promissory note payable to the defendants. Before the note matured it was indorsed by the defendants and deposited in bank ; and on maturity payment was demanded of the maker, and being refused the paper was protested and due notice given to the defendants. They then placed the note with the protest annexed in the hands of an auctioneer for sale. He sold it to the plaintiff, who paid the price and received the note. Judgment was given in the court below for the defendants on the ground that there had been no new demand of payment of the note of the maker and notice thereof to the indorsers after the transfer and delivery of the note to the plaintiff. But this judgment was reversed by the Court of Appeals.* » 81 N. Y. 441. ity. The plaintiff purchased thflTnote ^ * The Superior Court,' said Davies, as thus presented, and they have re- J. in delivering the opinion, 'treated ceiyed the amount of the purchase- the case as if there had heen a new con- money and should not he permitted to tract by the defendants of indorsement deny their liability.' at the time of the transfer and delivery After referring to Williams v, Ma- of the note to the plaintiff. It is well thews, 8 Cowen, 252, as a case so nearly settled that when a note once due is in- analogous as to be decisive on ajithority, dorsed and transferred, the Indorser the learned judge proceeded to say : * In cannot be made liable upon his contract the present case the plaintiff dealt with of indorsement unless there has been Nicolay the auctioneer, the presumptive subsequent t4) such indorsement and holder of the note, and the plaintiff had transfer a demand of payment of the no actual notice or any notice to put maker and notice to the indorser. him on inquiry as to who was the holder Leavitt v. Putnam, 8 Comst. 494. In or seller of the note. He had a right this case there was no new contract of to assume that all the parties to the indorsement on the transfer and delivery note were bound for its payment, and of this note to the present plaintiff, in this faith he made tlie purchase of it. The indorsers themselves put this note . . . We place our judgment in this upon the market after they had been case upon the ground that the defend- legally and duly charged thereon and ants are estopped by their acts from made liable as indorsers thereon, with controverting their liability upon the the evidence of such liability attached, note as indorsers thereof.' An indorser Such act of theirs was a representation may also be held liable by his conduct, of their liability on the note, and they though he has in fact been discharged are now estopped in good faith and for want of notice. libbey v. Pierce, sound morals from denying such liabil- 47 N. H. 809. 606 ESTOPPEL IN PAIS. [CHAP. XVU CHAPTER XVIL LEGAL EFFECT OF CONTRACT: TAKING POSSESSION. We have now to consider the second class of estoppels by contract, — that class in which the estoppel arises, not by reason of some fact agreed or assumed to be true, but as the legal effect of carrying the contract into execution ; and first, of the effect of taking possession of property from the hand of another. § 1. Estoppel of Tenant to deny Landlord's Title} Creation of the complete relation of landlord and tenant has the effect in law of estopping the tenant to deny the validity of the title which he has admitted to exist in the landlord.' We have already alluded to the fact that this estoppel is of modern origin.' In the time of Lord Coke the only way in which a tenant could be estopped to deny the title of his landlord was by the acceptance of a sealed lease. That this estoppel took its rise from the seal, and differed in origin from the modem estoppel, is evident from the fact that in the case of a lease by deed-poll the estoppel was confined to the party sealing ; while it is cer- tain that at the present time it is immaterial to the existence of the estoppel whether the lease be by deed-poll or by indenture, or even whether there be any written lease at alL And again, the estoppel then terminated with the expiration of the lease ; 1 The estoppel upon the landlord has not be contrary to law. Shorman v. already been considered under Title by Eakin, 47 Ark. 351 ; Dupas o. Wassell, E8top|>el. Ante, pp. 390-394. 1 Dill. 218. a Hatch r. Bullock, 57 N. H. 16 ; « Ante, pp. 458, 464. See also the Betts t;. Wurth, 32 N. J. Eq. 82 ; Ter- article already cited from the 5th Am. rett V, Cowenhaven, 79 N. Y. 400 ; Law Rev. Without continually citing Ninis V. Sherman, 43 Mich. 45 ; Cam- this article we shall draw from it con- pau V. Lafferty, ib. 429 ; Ward v. Ryan, siderably in the opening pages of this 10 Ir. R. C. L. 17. The transaction, chapter; and we recommend a carefnl for the purpose of the estoppel, must reading of it. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 607 while at the present day the estoppel continues until the sur- render of possession. And the tenant's estoppel of the present day arises as weU in regard to personalty as to realty.^ Moreover, even though there was a lease by indentui'e, no estoppel arose against the tenant except in actions of which the demise was the gist, such as covenant, or in the avowry in replevin, and similar cases. It arose only upon the indenture, and then only when the indenture was specially pleaded or replied to the plea of * nil habuit in tenementis.' ' The estoppel, therefore, could not arise in debt for rent; for the indenture could not be the foundation of such an action. * How narrow and technical the distinction established by this rule was,* says the writer in the American Law Review, already referred to, ' will appear on referring to the ancient precedents of debt for rent. In Carson v, Faunt^ the declaration avers a demise, set- ting out specifically the date, terra, premises, and rate of rent ; yet nil habuit, etc. was pleaded, and issue was joined thereon. In Oftiey v. Ormes* the indenture is set out in full; yet nil habuit, etc. was a good plea. . . . Indeed, the entire distinction between the pleading when estoppel would and when it would not arise seems to have been found in the technical averment of the breach ; that in debt concluding that such an amount had accrued and was due, etc. ; and that in covenant that the cove- nant recited had been broken, etc' It is clear, then, that the tenant's estoppel of the present day is not the same as that of the early common law. It seems conclusive also against the idea that the modern estoppel origi- nated in the feudal tenures,^ that the feud required an estate of freehold ; and the extremely flexible and varied character of the doctrine prevailing at present is in strong contrast to the narrow technical rules of the feudal tenures. The modern origin of the present estoppel is confirmed by the cases. In the familiar case of Doe d. Knight v. Smythe,® an action of ejectment, Mr. Justice Dampier said : * It has been 1 Ryder v. Mansell, 66 Maine, 167. . > 1 Lilly, Ent. 168 (1698). 2 Palmer v, Ekins, 2 Ld. Raym. * Ibid. 179. 1550 ; Veale v. Warner, 1 Wins. Sannd. * 1 Washburn, Real Prop. 856. 825, n. 4 ; Sylliyan v. Stradling, 2 Wils. 4 Maule & S. 347 (1816). 208. 508 ESTOPPEL IN PAIS. [CHAP. XVH. ruled often that neither the tenant nor any one claiming under him can dispute the landlord's title. This, I believe, has been the rule for the last twerUy-Jive years, and, I remember, was so laid down by Buller, J. on the western circuit.' The case re- ferred to was perhaps Doe d. Bristow v. Pegge,^ decided in 1785, in which Mr. Justice Buller said : ' An objection has been taken at the bar that the plaintiff in ejectment must recover by the strength of his own title. The old cases certainly say so ; but for the last forty or fifty years constant exceptions to this rule have been admitted. One case, which is received as clear iaw, is that of a tenant who cannot set up the title of the mortgagee against the mortgagor, because he holds under the mortgagor and has admitted the title. There was a case before me at Guildhall, and I believe another upon the Oxford circuit of the same nature, where a lessee for years had got possession of some mortgage deeds, and endeavored to set up that title against the mortgagor; but though this showed that the plaintiff had no right to recover against the mortgagee, yet I permitted him to do so in that instance, and the decision was acquiesced under.' It seems, then, that the origin of the rule in ejectment cannot be traced further back than to the middle of the last century ; the writer in the American Law Beview, after mentioning this fact, states that in actions for use and occupation the rule was held a quarter of a century earlier. It is also shown by the same writer that the doctrine did not originate in the statute passed in 1738 for the relief of land- lords,^ as was supposed by Mr. Justice Woodruff in Moffat v. 1 Reported in note, 1 T. B. 758. action, any parol demise or agreement* ^ It was enacted by § 14 of this not being by deed, whereon a certain statute, that, 'to obviate some diffi- rent was reserved, shall appear, the culties that may at times occur in the plaintiff in such action shall not there- recovery of rents where demises are not fore be nonsuited, but may make use by deed, it shall and may be lawful to thereof as an evidence of the quau- and for the landlord, where the agree- tum of damages to be recovered.* And ment is not by deed, to recover a reason- by § 22, ' it shall be lawful for all de- able satisfaction for the lands, tenements, fendants in replevin to avow and make and hereditaments held or occupied by cognizance generally that the plaintiff the defendant, in an action on the case in replevin, or other tenant of the lands [assumpsit] for the nse and occupation and tenements whereon each distress of what was so held and enjoyed ; and was made, enjoyed the same nnder a if in evidence on the trial of such grant or demise at such a certain rent SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 509 Strong,^ and this appears from the fact that in Lewis v. Willis ^ tried in 1752, the case of Prichard v. Houlditch ^ was referred to to sustain a demurrer to a plea of nil habuit in tenementis, in indebitatus assumpsit for use and occupation; a case tried twelve years prior to the passage of the act In Gibson v. Kirk* Lord Denman says that assumpsit for use and occupation was simply protected by the statute from being defeated by proof of a certain rent under a parol demise or agreement not under seal, and that before the statute actions of assumpsit for the occupa- tion of land had been frequently held maintainable.^ The fact is also mentioned that debt for use and occupation antedated the statute. The conclusion appears to be justified that the origin and character of the modem estoppel of the tenant is to be found va this ancient action of assumpsit for use and occupation. In this form of action what was sought to be recovered was, not technically rent, but compensation from day to«day for actual enjoyment. But to the maintenance of the action the relation of landlord and tenant must have been established ; and when established, the modern estoppel in pais arose. Enjoyment hy permission is the foundation of the action, and is therefore the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord Two conditions, then, are essential to the existence of the estoppel: first, possession; secondly, permission; when these conditions are present the estoppel arises.^ daring the term wherein the rent dis- Hussnuin v, Wilke, 50 Cal. 250. It has trained for was incurred, which rent has been suggested, and with much sound- been and still remains due . . . with- ness apparently, that the estoppel wiU out setting forth farther the grant, arise even if tliere appears no entry or terms, demise, or title of the landlord.' possession by the tenant if he does not 11 Geo. 2, c. 19. show that he could not get possession. 1 9 Bosw. 57, 65. 5 Am. Law Rev. 16 ; Vamam v. Smith, « 1 Wils. 814. 15 N. Y. 327, 831. In this case Denio, » Hil. T. 18, Geo. 1 (1727). C. J. observed : *If the defendant in ^ Q. B. 840, 855. his answer had confined himself to a ^ See also Churchward v. Ford, 2 denial that the plaintiff at the time of Hurl. & N. 446 ; Curtis v, Spitty, 1 the demise had any estate in the prem- Bing. N. C. 15 ; Beverly v. Lincoln ises, the question would be presented Gaslight Co., 6 Ad. & E. 889, note ; whether the ancient rule of the com- Egler V, Marsden, 5 Taunt. 25. mon law, to which I have referred, pre- ^ Morrison v. Bassett, 26 Minn. 235 ; vails at this day. There would not be 610 ESTOPPEL IN PAIS. [CHAP. XVII. It will now be an easy matter to dispose of some of the cases. In Davis v. Tyler ^ the plaintiff brought replevin for taking his goods. The defendant avowed the taking as a distress for rent due. The plaintiff pleaded to the avowry that the land was not the defendant's ; to which the defendant replied by way of estoppel that the plaintiff had accepted from the defendant a written lease for the premises signed by both parties, and that the plaintiff occupied the premises under the lease. There was a demurrer to the replication on the ground that a sealed lease had not been alleged ; and the demurrer was sustained. The court said that no instrument in writing, not under seal, could be pleaded as an estoppel; and that the defendant, therefore, should not have replied the unsealed lease by way of estoppel, but should have taken issue upon the allegation that the prem- ises were not his freehold. This decision proceeds upon the mistaken assumption that the seal is the •foundation of the tenant's estoppel, the court no doubt having in mind the estoppel of the early common law. And the same remark is applicable to Davis v. Shoemaker,' and to all that class of cases. It is worthy of notice, however, that the case just cited was an action of debt for rent; and it was for a long time supposed in England that in this action nil habuit was a good plea.* There is ground for doubt whether such a doctrine would now be held in England.* And it is quite clear that it does not prevail at the present day in America.* In the recent case of Page v. Kinsman^ the position was taken that the estoppel upon a tenant holding under a lease by indenture did not outlast the term ; but that after the ex- 3iuch appearance of justice in holding ^ 1 Bawle, 135. lat where one has taken a written • Syllivan v. Stradling, 2 Wils. 208; lease of premises and agreed to pay the Smith v. Scott, 6 C. B. n. 8. 771, obiter, rent, hut has not thought proper to avail * See 5 Am. Law Rev. 15. himself of the right he had thus con- ^ Moore v. Beasley, 8 Ohio, 294 ; tmcted for by going into possession. Gray v. Johnson, 14 N. H. 414; Var- where he might have done so without nam v. Smith, 15 N. Y. 827. hindrance from any one, he can defend • 48 N. H. 828. See Carpenter v, against his engagement by showing that Thompson, 8 N. H. 204 ; Gray'e. John- there was a defect in the lessor's title, son, 14 N. H. 421 ; Russell v. Fabyan, and that he was not really seiaed of the 27 K. H. 587 ; Accidental Death Ins. land.* Co. w. Mackenzie, 5 L. T. n. s. 20 ; s. c. 1 18 Johns. 490. 10 0. E K. 8. 870, Am. ed. SECT. I.] ESTOPPEL BT CONTRACT : LEGAL EFFECT. 511 piration of the term the tenant might set up his own title to the premises without giving back the possession. But the court in this case, misconceiving the true origin of the modern doctrine, rests the decision upon the rule in Coke that ' if a man take a lease for years of his own land by deed indented, the estoppel doth not continue after the term ended. For by the taking of the lease the estoppel doth grow, and consequently by the end of the lease the estoppel determines.' ^ The seal being the effi- cient element of estoppel in the early common law, the estoppel was removed when, by the expiration of the term, its power terminated. But permissive possession being the ground of the modem estoppel, it is clear that the estoppel will prevail so long as such possession continues,^ though the contract of lease was void* And the authorities upon this point are numerous.* We proceed now to a more detailed examination of the modern doc- trine of the tenant's estoppel, and, as heretofore, by a presenta- tion of the cases. Payment of rent is evidence of permissive occupation, and when unaccompanied by fraud or mistake establishes the rela- tion of landlord and tenant,^ and is the ordinary evidence upon which the estoppel arises, though it is by no means the only evidence upon which the estoppel may be founded.® In » Coke, Litt. 47 b. 64 N. H. 51 ; Lucaa v. Brooks, 18 Wall. ^ Bishop V, Lalouette, 67 Ala. 197 ; 436 ; Dunshee o. Grundy, 15 Gray, 814; Littleton v. Clayton, 77 Ala. 571 (secret Whalin v. Wliite, 25 N. Y.H62. Pay- Burrender and collusive resumption of ment of rent may also be condusiye possession). There were other matters evidence that the tenant is an assignee of involved in Page v. Kinsman, however, a lease. Williams o. Heales, L. R. 9 and the decision was in fact correct, C. P. 177. What constitutes a letting though this erroneous ground was taken, in cases of payment on shares, so as to ' Crawford v. Jones, 54 Ala. 459. raise an estoppel, see Strain v. Gardner, « See Bailey v, Kilbum, 10 Met. 61 Wis. 174; Jackson r. Brownell, 1 176 ; Miller v. Lang, 99 Mass. 13 ; Doe Johns. 267 ; Overseers r. Ovei-seers, 14 d. Bullen v. Mills, 2 Ad. & E. 17; Johns. 865; Taylor ». Bradley, 89 N. Y. Fleming v, Gooding, 10 Bing. 549 ; 5 129. Judgment for the plaintiff in a Am. Law Rev. 21, 22, and cases cited ; suit for unlawful detainer conclusively Morrison o. Bassett, 26 Minn. 235 ; establishes the relation of landlord and Love V. Law, 57 Miss. 596 ; Nims v, tenant between the parties. Norwood Sherman, 48 Mich. 45. v, Kirby, 70 Ala. 897. * Doe d. Jackson v. Wilkinson, 8 • See e. g. CJonwell v. Mann, 100 Bam. & C. 418; Cooper o. Rlandy, 4 K. Car. 284. Moore & 3. 562 ; Killoren o. Mnrtaugh, 512 ESTOPPEL IN PAIS. [CHAP. XVU. the English case first cited, an action of ejectment, it appeared that, upwards of tliirty years before, the defendant had enclosed a piece of waste ground of which one TraflTord was owner. Subse- quently the plaintiff bought the land of Trafford, and several years afterwards demanded rent of the defendant, who paid it. Six years later the plaintiff gave notice to quit, with which the defend- ant refused to comply, claiming that he had a right to the closa The court held the latter estopped by the payment of the rent^ The rule that the estoppel of the tenant depends upon the existence of a seal having become obsolete, it is plain that the doctrine of mutuality in the case of competent parties is fully applicable to the modem relation of landlord and tenant. And as this relation is one of contract, it follows that the same rules concerning the competency of parties prevail as in the case of estoppels by deed. A lease, like other contracts, is binding only upon parties sui juris ; and persons under disability not being bound by the contract are not estopped to deny its validity. On the other hand, since a contract made with a person under disability, when not absolutely void, may be avoided only by the incompetent party, and is binding upon the other, the latter, in the case of a tenancy, will be estopped to deny the validity of the lease until its obligatory force is repudiated by the oppo- site party.^ In the case first cited a parol gift of land had been made by a third person to an infant, and the infant's mother had been put in possession under an agreement with the third person to hold the land for her son ; and the court held that though the technical relation of landlord and tenant had not been created, the mother was still estopped before the sur- render of possession from denying her son's title. As in other cases, the estoppel binds the tenant's privies as well as the tenant. The rule is illustrated in Doe d. Bullen v. 1 * The payment of rent,' said Hoi- a tenancy, it is probable that he wonld royd, J. ' was an acknowh^dgment that not have paid the rent ; but having paid the occupation was by permission. Had it, the tenancy is acknowledged.' the defendant known that the lessor of , ^ Russell v. Erwin, 88 Ala. 4L See the plaintiff could not otherwise prove Grant v. White, 42 Mo. 285. SECT. I.] ESTOPPEL BT CONTRACT : LEGAL EFFECT. 513 • Mills.^ Certain premises were in the possession of a lessee under an indenture from BuUen, the plaintiflT. Subsequently the defendant laid claim to the premises, and ofifered the lessee £20 if he would surrender to him. The oflfer was accepted, and the defendant took possession. The plaintiff now brought an action of ejectment by reason of a forfeiture caused by the non- payment of rent by the original lessee ; and the defendant at- tempted to prove his own title to the land. The court refused to allow him to do so. Mr. Justice Taunton said that the de- fendant having paid £20 for the lease, and then having taken possession, had put himself in the situation of an assignee of that lease, and was as much estopped from disputing the title of the landlord as the immediate lessee.' Mr. Justice Pattei^on said that the act of the defendant by which he was let into pos- session was either an act of collusion to enable him to dispute the landlord's title, or it was a purchase by him of the lessee's interest ; and in either case the defence was inadmissible.^ If the tenant sublet the premises, the sub-lessee cannot dis- pute the title of the original lessor.* In Barwick v. Thompson, just cited, the m&ster of a school, holding under the mayor and aldermen of the borough in their capacity of guardians and gov* ernors of the school, demised the school lands to the defendants, who paid rent to the master. In an ejectment by the mayor and aldermen, the defendants contended that they did not hold under the plaintiffs, but under the master ; but that even if they held under them, there was no reason why they should not be permitted to inquire into the validity of their title, since all the evidence of title had been given by the master, and in this re- spect the case differed from the ordinary one where a tenant was not permitted to impeach his landlord's title. But the court was of opinion that as the defendants held under the master, who had been appointed by the mayor and aldermen, they ought not to dispute the title of the latter, and that it was immaterial whether the defendants held immediately under the 1 2 Ad. & E. 17. ' See Doe d. Knight v. Smythe, 4 s Otis V. McMillan, 70 Ala. 46, Manle & S. 847. 68 ; Dobeon v. Culpepper, 28 Gratt ^ Barwick v, Thompson, 7 T. R. 862. 488. 33 514 ESTOPPEL IN PATS. [CHAP. XVII. mayor and aldermen, or under the master who claimed under them. The doctrine of privity is well illustrated in a recent case in the English Common Pleas.^ The action was ejectment under the following circumstances : The plaintifiTs let land to one Budd, who continued to hold over and pay rent for several years after the expiration of the plaintiffs' title, which occurred in 1859. In 1863 Budd sublet the premises to the defendant, who paid rent to him. In 1864 the plaintiffs gave notice to Budd to quit, which he did. There was no evidence that the defendant Iiad paid rent to any one subsequently to that date. Judgment was given for the plaintiff.* Passing to the fundamental rule that a tenant cannot while in possession set up an outstanding title to overthrow the title of one under whom he holds, or otherwise dispute such title,® — that 1 London & Northwestern K. Co. v. snch title has terminated since the corn- West, L. R. 2 0. P. 553. Further, of mencement of the tenancy. In this privity, see Woodruff v. Erie Ry. Co., 73 case the answer is to be found in a con- N. Y. 609 ; Pate v. Turner, 94 N. Car. chision of fact, namely, that as the 47 ; Bishop v. Lalouette, 67 Ala. 197 ; question is raised by a mere stranger Norwood V. Kirby, 70 Ala. 897 (admin- who does not even allege that he has istrator and administrator de bonis non); any title himself, we ought to conclude White V. BarloWy 72 Ga. 887 (purchaser if necessary that Budd intended to re- from teusnt, with notice) ; Blake v. main tenant to the plaintiffs after 1859, Sanderson, 1 Gray, 832 ; Lunsford v. and that there was therefore a new ten- Alexander, 4 Dev. & B. 40 ; Rennie ancy in law from year to year created sub- o. Robinson, 1 Bing. 147; Doe d. v. sequently to the year 1859. He there- Wheble v. Fuller, 1 Tyr. & G. 17. fore could not haye disputed the plain tiffs' ^ Willes, J. said : ' It seems to me title, and neither can the defendant.* that the question is whether, if Budd ' Helena v. Turner, 86 Ark. 577 ; had been the defendant instead of West, Baker v. Barclift, 76 Ala. 414; Cald- he could haye resisted this ejectment, well v. Smith, 77 Ala. 157; Littleton for West CAvae in under Budd ; and v. Clayton, ib. 571 ; Benton v. Benton, since no change has taken place in the 95 N. Car. 559 ; Allen v. Griffin, 98 right of the different parties since his N. Car. 120. But in Allen o. Griffin it tenancy commenced, he cannot dispute is said, quoting Davis v. Davis, 83 N. that the rights of Budd have duly vested Car. 71, that *the rule docs not pre- in him. Would, then, Budd be able to clnde the tenant from showing an equi« dispute the plaintiffs' title f If his ten- table title in himself, or such circum- ancy had commenced after 1859, when stances as under our former system would the land is alleged to have vested in the call for an interposition of a court of adjoining owner, there is no doubt that equity for relief.' Qu»re whether this he would have been estopped from doing means anything more than is to be in- so, since a tenant cannot dispute his ferred from the qualifications infra of landlord's title except by showing that the rule f SECT. I.] ESTOPPEL BY CONTRACT : LISGAL EFFECT. 516 rule is illustrated in Doe d. Ogle v. Vickers,^ an ejectment for land in Shropshire. The facts were these : In 1824 the defend- ant executed a mortgage in fee to the plaintiff of the premises in question. Subsequently other parties brought ejectment for two undivided thirds of the premises against the defendant, who remained in possession claiming by title anterior to the mortgage mentioned. The plaintiffs in that case obtained judg- ment subject to the award of a barrister, who was to direct what soit of lease should be executed by the successful parties to the defendant. The arbitrator awarded a lease which was executed and had not expired at the commencement of the present action. The defendant having suffered judgment for one third, contended that the plaintiffs could not recover the other two undivided thirds, as the defendant held thiem by a title acquired subsequently to the mortgage, upon which the mortgage could not operate. But judgment was given for the plaintiff.* In a case in the English Common Pleas * the defendant to an avowry for rent pleaded that * before the lessor (who claimed title under a pretended agreement between him and one T R) had anything in the premises, and before the demise by the lessor to the lessee, T E mortgaged them in fee to J C ; that the mortgage being forfeited, notice of the forfeiture being given to the lessee, and the lessee having been required to attorn and having attorned to the mortgagee, he distrained for the rent, when the lessee paid him to save the goods from being sold.' The court held the plea bad.* 1 4 Ad. & E. 782. he replied, ' it may be equally contended ' See Doe d. Hurst v. Clifton, 4 Ad. that non tenuit is a plea of riens in ar- & E. 809, 813, holding that the case is rear. Now, it is quite clear that a party not different where the deed is set up cannot plead indirectly that which he by a mere nominal party for the benefit cannot plead directly ; he cannot by in reality of the mortgagor. adding words effect that which he would ' Achome v, Gomme, 2 Bing. 54. not be permitted to effect if it was stated ^ Rest, C. J. having stated that the simply ; and the nile which prohibits^a plea amounted to a plea of nil habuit in tenant from disputing in a court of law tenementis, said that it had been urged the title of his landlord is a wise rule, that what had been done by the plain- tending to general convenience especially tiff was equivalent to payment, and that when there is another court in which he the plea was nothing more than a spe- may insist on any equities which the cial plea of riens in arrear; * but if so,' case may involve. I am aware that 516 ESTOPPEL IN PAIS. [CHAP. XVII. The rule of estoppel, again, applies as well to cases in which the tenant has obtained possession by indirection, e. g. by &aud, as to ordinary cases of lease.^ The case cited was an ejectment^ in which it appeared that the defendant applied to the plaintiff, then in possession of the premises, for the privilege of getting vegetables from the garden ; and that having obtained the keys, he fraudulently took possession and set up a claim to the laud. The court refused to hear it^ there is a qualification of this rule, if has any right, she might in the first in- quaUfication it can be called, and that stance have brought ejectment or have there are cases in which the tenant has entered on Mrs. Johnson and disseised been permitted to show that the land- her, and maintained the possession, lord could not justify a distress. In aU But she takes neither course. She of them, however, the right of the land- fraudulently obtains perroiBsion to go lord to demise has been sdmitted, and upon the premises, and then turns the plea has been either that his title upon the lessor of the plaintiff and has since expired or that the tenant has insists upon holding the land. The been compelled to pay sums which he rule as to claiming title, which applies was entitled to deduct from the rent, to the case of a tenant, extends also to These cases, therefore, rather oonfirm that of a person coming in by permis* than impeach the general rule ; but sion as a mere lodger, or as a servant.' the tenant here broadly disputes the Mr. Justice Coleridge said that there lessor's right to demise.* The Chief was no distinction between the case of Justice probably referred among other a tenant and that of a common licensee, cases to Taylor v. Zamira, 6 Taunt 624, The licensee by asking permission ad- in regard to which Park, J. said : ' In mitted that there was a title in the Taylor v, Zamira the land was expressly landlord. * Suppose,' he proceeded to subjected to distress by a charge created say, ' that under the license an undis- before the lessor's title commenced. In turbed possession were enjoyed for some the present case unless the tenant had considerable time, and an action were attorned, though the mortgagor might brought for use and occupation, could have evicted, he could not have dis- the licensee dispute the licensor's right trained.' of action 1 The law would imply a ten- ^ Doe d. Johnson v. Baytilp, 3 Ad. ancy under such circumstances. Then & E. 188 ; 8. c. 4 Nev. & M. 837. if there be no distinction between the ' Mr. Justice Patterson said : ' In cases of a licensee and a tenant, do the the case of a person who has become circumstances here present an irresistible tenant there is no doubt as to the law. case of license ? Here is a party quietly Doe d. Knight v. Lady Smythe, 4 Maule in possession. The defendsnt comes and Sb S. 347, shows that he must first give asks for the key. If she had intended up possession to the party by whom he to make a claim of title, she might have was let in, and then if he or any one come as a trespasser to disseise, and claiming by him has a title aliunde, having entered might have stood upon that title may be tried by q'ectment. her right. But here that was not done; It was held in that case, not that the and under the circumstances of this case party claiming as landlady to the tenant the defendant before she could disputethe wa.s altogether estopped trom trying the title was bound to put the lessor of the right, but that the tenant must first re- plaintiff in the situation in which she store possession. If the defendant here stood before the leave was granted.' SECT. I.] ESTOPPEL BY CONTBACT I LEGAL EFFECT. 617 The estoppel of the tenant and his privies, however, relates only to the title of the landlord at the time the lease was granted ; the tenant's acceptance of the lease is simply an ad- mission that his landlord had sufficient right to lease the prop- erty at that time. That the tenant may show that his landlord's title has since in any way expired is shown, among other cases,^ by the case of Hopcraft v. Keys.* The action was replevin to try the validity of a distress for rent Issue was joined on the plaintifTs plea of non tenuit. The facts were these : Hopcraft was let into possession of a house by Hawkins, February 12, 1831, as tenant for a year; and the house being unfinished, Hawkins undertook to finish it by a certain time and to give Hopcraft the option of a lease at the end of the year. Hawkins had no other title to the premises than an agreement with one Kent, bearing date September 17, 1830, by which Kent agreed to grant him a lease after Hawkins should have finished the houses described in the agreement ; reserving to himself an ex- pi*ess power of re-entry, and avoiding the agreement if the houses were not completed within six months from the date of the agreement The houses were not finished within the time, and Kent on the 2d of April, before any rent was due from Hopcraft to Hawkins, re-entered for the condition broken and turned out all the tenants, Hopcraft among them. Kent there- upon put a man in possession of the house which had been occupied by Hopcraft The house was subsequently finished, vacated, and leased again to Hopcraft by Kent upon a new agreement and for a different rent The Chief Justice, with whom the other judges concurred, said that it was competent for the plaintiff to show that his landlord had a defeasible title only, and that such title had been actually defeated before any rent became due, and that the rule of estoppel could not apply to the case where the tenant had been actuaUy turned out of 1 Eromes v. Feeley, 182 Mass. 846 ; Maine, 167 ; Presstman v, Silljacks, 62 Hilboum v. Fogg, 99 Mass. 11 ; Lam- Md. 647 ; Delmege v. Mallins, 9 Jr. son V. Clarkson, 118 Mass. 848 ; Farris R. C. L. 209, 214. Tenant at will may V. Honston, 74 Ala. 162 ; Caldwell v. show that his landlord's title has ex- Smith, 77 Ala. 167, 166 ; Clarke v, pired. Emmes v. Feeley, supra. Clarke, 61 Ala. 498 ; St. John v. Quit- * 9 Bing. 618. sow, 72 111. 834 ; Byder v, Mansell, 66 518 ESTOPPEL IN PAIS. [CHAP. XVIL possession and kept out a considerable time, and had afterwards entered under a new agreement made bona fide with another person. The case of Glaridge v. Mackenzie ^ presents another phase of the same important rule. The action was trespass for two dis- tresses for rent. The facts, in brief, were that the plaintiff having derived possession from a third person paid rent to the defendant, who was in fact a termor. After the latter's term had expired, but not to the knowledge of the plaintiff, the plain- tiff entered into an agreement with the defendant for a tenancy, and in pursuance thereof peiid rent to him. The court held that the plaintiff was not estopped to show that the distresses complained of were illegal, on the ground that the defendant's title had expired.^ 1 4 Man. & 6. 143. shown tliat she had no title, and that ' Chief Justice Tindal came to this the title was in some one else. It is conclusion upoii two grounds: First, not like the case of a person letting that there was no new taking of the another into possession of vacant prem- premises by the plaintiff or any letting ises ; it is, in fact, a remaining in pos- into possession by the defendant ; and session of premises which had been secondly, that even assuming there was formerly occupied by the tenant. . . . a new taking or letting into possession, In effect all that the plaintiff proposes the jury had found that the transaction to do in this case is to show that the had taken place without a knowledge defendant at one time had a good title, on the part of the plaintiff of the cir- which has since expired.* Mr. Justice cumstances. *Upon the first point,' Coltman said : ' If the plaintiff was not he said, ' I think it was competent for let into possession by the defendant, it the plaintiff to show that the defend- is clear that he is not precluded from ant's title had expired. The plaintiff showing that her title is at an end. was in possession of the premises ; and What, then, is the meaning of being after the expiration of the defendant's* let into possession ? The plaintiff, it interest he continued to occupy as ten- is admitted, was not let into corporeal ant by sufferance under the party who possession by the defendant ; he had was entitled to the intermediate term been let in by Tillbury, quite indepen- of three quarters of a year. The wit- dently of Mackenzie. But then it is ness Richards speaks of a new agree- argued that in July, 1838, the plaintiff ment having been entered into between entered into an agreement to take the the plaintiff and the defendant that the premises from the defendant ; and I former should continue in possession think that such must be considered to as tenant to tlie latter ; but there was be the result of the evidence. And if no new possession given by the defend- she had a legal right at that time and ant ; she was in no way prejudiced ; might have turned the plaintiff out of she could not have turned the plaintiff possession, I am not prepared to say out of possession ; and before their but that he must have formally sur- agreement, if she had brought her rendered to the defendant. But the ejectment, the plaintiff might liave infirmity of the defendant's case con- SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 619 The tenant^ again, may purchase the property from the land- lord, and set up the title thus acquired against him.^ In the case tirst cited, an action of covenant for rent, the defendant offered to show that he had become the purchaser at execution sale of the reversion of a portion of the demised premises, and the Supreme Court held the evidence admissible in mitigation of damages. And it was said that if the purchase had covered the entire reversionary interest of the landlord, the fact could have been alleged, and would have constituted a perfect bar to the action. Mr. Justice Cowen, speaking for the court, said that the tenant could not deny that the landlord had a right to demise at the time the lease was given ; nor could he defend on the ground that he had acquired an outstanding title adverse to that of the landlord. But this was the extent of the doctrine. If the landlord parted with his title pending the leeise, the tenant would be bound to pay rent to the assignee; and should the tenant then buy in the assignee's right, the lease would be ex- tinguished. And the result would be the same if the landlord should sell and release to the lessee. No action would lie for rent in these cases. And, thei'efore, had there been a sheriff's sale of the whole reversion, and had the defendant redeemed or purchased under the judgment, no action could have been sustained ; for a purchase or acquisition of title under a judg- ment agaibst the lessor was the same thing as if the lessor had granted by deed. However, a tenant bound to pay the taxes, and neglecting to do so, cannot buy in the title at tax sale, and set it up against his landlord. This would be to profit by his own wrong.^ The tenant is not estopped to allege that he was let into pos- session under a title since acquired by him, under which subor- dinately the landlord claims.^ In the case cited the plaintiff in sists in this, that at the time of this to the jury, and they have found in agreement she had in fact no power to the affirmative. ' tnm the plaintiff ont of possession, and ^ Nellis v. Lathrop, 22 Wend. 121 ; I think, therefore, that he cannot be said Tilghman v. Little, 18 IlL 289; Farria to have been let in by her. The ques- v. Honston, 74 Ala. 162. tion then is, Was this a^eement made ' Hnskell v. Putnam, 42 Maine, 244. under a mistaken notion as to the ' Ford ti. Ager, 2 UurL & C. 279. facts? This point was properly left 520 ESTOPPEL IN PAIS. [CHAP. ZYU. ejectment claimed title to the premises in dispute through one Quinton Ford, by a conveyance in lee. Quinton bad acquired the title by being put into possession by his father, and occu- pying the premises for twenty-five years without piyment of rent or other acknowledgment of the father's title. The latter, after putting his sou into possession, mortgaged the property. After Quinton had conveyed to the plaintiff, and after he had attorned to him as tenant, he gave up possession in considera- tion of a sum of money to the representatives of the mortgagor (his father) and of the mortgagee, who united in a conveyance to the defendants. The question was whether the defendants were estopped by reason of their relation to the plaintiff. The court de- cided that they were not. Mr. Baron Ghannell said that the case was distinguishable from Doe d. BuUen v. Mills.^ Although up to a certain point it resembled that case in its facts, it differed from it in the circumstances under which the plaintiff s tenant was originally let into possession. The defendants did not seek to dis- pute the plaintiff's title, but to show an affirmative title in them- selves from which any title the plaintiff had was derived. It is well settled that a tenant in possession cannot, even after the expiration of his lease, deny his landlord's title without (1) actually and openly * surrendering possession to him, or (2) being evicted by title paramount, or attorning thereto, or (3) at least giving notice to his landlord that he shall claim under another and a valid title.* In Littleton i?. Clayton the tenant, by collusion with another, removed from the premises at the termination of the lease, for a few days, without the landlord's knowledge, and then by the same collusion resumed possession. It was held that this was not enough to break the force of the estoppel ; the tenant must act in good faith, and restore the landlord to the position he held at first.* In Morse v, Goddard, just cited, to illustrate the second case, the plaintiff sued for a month's rent, and the defence was that 1 2 Ad. & E. 17 ; ante, pp. 512, 513. * 'Mere leaving possession and re- * Littleton v. Clayton, 77 Ala. 671. suming it a short time afterwards, with- * Miller v. Lang, 99 Mass. IS ; Hil- out notice to the landlord, or giving him bourn i^. Fogg, ib. 11 ; Morse v, God- an opportunity to take possession, is not dard, 13 Met. 177. sufficient. ' Ib. Cloptou, J. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 521 the tenant had been ousted by persons having a paramount title before the commencement of the time for which the rent was claimed. The defendant offered to show that persons having a valid title paramount to that of the defendant and his lessor the plaintiff, and having an immediate right of entry and of possession under it, made an actual entry on the premises, and required the defendant to pay rent to them from the time of such entry, or quit the premises. But it was objected that a tenant could not contest his landlord's title, or set up a para- mount adverse title in a thin! person. The court, however, re- ceived the evidence.^ The instruction to the jury had been that if the defendant bona fide had yielded possession of the premises to the third persons to prevent being actually expelled, of which fact the plaintiff had notice, and if upon the evidence the third persons had a good title paramount to that of the defendant and of the lessor, and the right of immediate possession, then their 1 Chief Justice Shaw, speaking for pellable to resist such entry. Hamilton the court, observed that the general v. Cults, 4 Mass. 849. So when an exe- doctrine of estoppel upon a tenant was cution creditor is put into possession by not inconsistent with another rule, that the sheriff under the levy of an execu- where there is an eviction or ouster of tion, he has the actual and exclusive the lessee by title paramount which he possession, and may maintain trespass, cannot resist, it is a good bar to the de- Gore v. Brazier, 3 Ma.ss. 523. There is mand for rent, on the plain ground of a recent case which seems to us alike equity, that the enjoyment of the estate [sic] in principle. Smith v. Shepard, 16 is the consideration for the covenant Pick. 147. A mortgagor in possession to pay rent, and when the lessee is de- made a lease for years, reserving rent, prived of the benefit, he cannot be held Afterwards the mortgagee, having a to pay the compensation. Bacon*8 Abr. paramount title, entered, as he law- Rent, L; Cniise's Dig. tit 28, c. 3. fully might, with right to take the •It is not enough, therefore,' the Chief rents and profits. In a suit by lessor Justice proceeded to say, * that a third against lessee for rent such entry under party has a paramount title ; but to ex- a paramount title was held to be an cuse the payment of rent the defendant ouster, and a good bar to the action.* must have been ousted or evicted under But where the third person merely for- that title. Hunt v. Cope, 1 Cowp. 242 ; bade the tenant to pay rent to his lessor, Pendleton v. Dyett, 4 Cowen, 681. But demanding it herself, but without avail, an eviction under a judgment of law is and had even brought a writ of entry not necessary. An actual entry by one which had not been tried, it was held having a paramount title and present that the tenant could not set up the right of entry is an ouster of the tenant, title of such person in an action by the He cannot lawfully hold against the landlord to recover possession. Hawea title of such party. He is not bound r. Shaw, 100 Mass. 187. See also Hardy to hold unlawfully and subject himself v. Akerly, 67 Barb. 148. to an action, and is not, theroforei com* 522 ESTOPPEL IN PAIS. [CHAP. XVIL entry was equivalent to an actual ouster, and was a good and available defence to the action of rent. And this instruction was held right.^ The settled doctrine, in this country at least, is in accordance with the above-named case of Morse v. Goddard, that a con- structive eviction is sufficient to remove the estoppel of the tenant.^ A different rule, however, at one time prevailed in the courts of New York. It was even supposed in some of the cases that an eviction under legal process was necessary to pro- duce tliis result ;^ and later, when this position was abandoned, it was still insisted that there must have been an actual entry and expulsion.* But this position is not now upheld.^ Some doubt has been raised in a recent English case^ whether con- structive eviction is enough in England ; but it has been dis- tinctly declared enough in one case,^ and evidently so considered in others.^ And it has been said that the law must be regarded as settled in England in this way.^ The estoppel of the tenant may rest upon the sole ground that he has received possession from the landlord. It is per- force an admission of some title in him ; and by reason of the landlord's change of position the act is deemed a binding ^ Shaw, C. J. said that it was to be ^ Simera v. Saltus, supra ; St. John understood that when a tenant thus re- t;. Palmer, 5 Hill, 599 ; Greenvault v. lied on an ouster in pais, without judg- Davis, supra; Whalin v. White, supra, ment, he had the burden of proving the In California it is held that a tenant validity of the elder title, the actual en- cannot justify an attoniment to one try under it, and that he acted in good who has recovered the land under an faith, and without collusion with the ejectment against the tenant if the party entering. See Winstell v, Hehl, landlord was not notified to come in 6 Bush, 58. and defend. Douglas v. Fulda, 45 2 Grist V. Hodges, 8 Dev. 198; Boss Cal. 592. V. Dysart, 33 Penn. St. 452 ; Siniers • Delaney v. Fox, 2 C. B. N. 8. 76% V. Saltus, 3 Denio, 214; Greenvault o. per Cockbum, 0. J. Davis, 4 Hill, 643 ; Whalin v. White, 7 Poole v. Whitt, 16 Mees. & W. 25 N. Y. 462, 465. 571, 677. « liansing v. Van Alstyne, 2 Wend. * Doe d. Hipginbotham v. Barton, 663, note ; Webb v. Alexander, 7 11 Ad. & E. 307 ; Hawkes v. Orton, 6 Wend. 281 ; Greenby v. Wilcocks, 2 Ad. & E. 367 ; Emery v. Bamett^ 4 Johns. 1. C. B. N. 8. 423. * Waldron v. McCarty, 8 John^. 471 ; » 5 Am. Law Rev. 85. Kortz 17. Carpenter, 5 Johns. 120 ; Kerr V. Shaw, 18 Johns. 236. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 623 admission that he had sufficient title to make a lease. Where, however, the tenant, being already in possession, has merely made an attornment or an acknowledgment of a tenancy, he may show that he did so through ignorance or mistake.^ In the case Jew v, "Wood a tenant filed an interpleader against two sets of persons who claimed to be respectively devisees and co-heirs of his original landlord ; and the court granted an injunction to stay proceedings at law by one of the parties for the recovery of rent on payment into court of the sum due, though it appeared that the plaintiff had acknowledged in writing the title of the paity suing at law, and had paid rent to him for nearly two yeai-s after the death of the oi-iginal landlord, it appearing that this had been done in ignorance of the fact that the title was in dispute.^ ' Wiggin V. Wiggin, 58 N. H . 285 ; under such misapprehension was not Farris v, Houston, 74 Ala. 162 ; Jew v. considered as altering the situation of Wooii, Craig & P. 185 ; Doe d. Plevin the tenant. He was permitted to call V. Brown, 7 Ad. & E. 447 ; Comisli v. upon the person claiming his land to Searell, 8 Bam. & C. 471 ; 8. c. 1 Man. prove his title. Fenner v. Duplock, 2 & B. 703 Kogers v. Pitcher, 6 Taunt. Bing. 10, proceeded entii'ely upon the 202;.Grayenor v. Woodhoose, 1 Bing. tenant's ignorance of the title of the 38. party who claimed the rent. Gregory ^ * It appears to me well established,' v. Doidge, 3 Bing. 474, is a still stronger observed I/ord Chancellor Cotteuham, case. There does not appear to have ' by the uniform current of all the cases been any misapprehension ; the tenant (for there is not that discrepancy be- had deliberately acknowlerecluded from so doing by not hold under the party who claimed the payment of rent and other acts the rent, that party having been evicted which might under other circumstances by a title paramount, and the occupier amount to an attornment. Several cases having commenced a new tenancy under were cited. Rogers v. Pitcher, 6 Taunt, the party who so evicted his prior land- 202, was one. That was a case of mere lord. The case of Doe d. Fie^dn v, mistflke as to the title of the party to Brown, 7 Ad. & £. 447, was a case of wliom the rent was paid. There was attornment made by the direction of no ntisrepresentation by the party so the person under whom the tenant held, obtaining the rent ; it was a mere mis- That title was disputed by his assignee ; apprehension, and the payment of rent bat Lord Denman, in holding that the o24 ESTOPPEL IN PAIS. [CHAP. XVn. In like manner, where the title of the lessor who let the ten- ant into possession has expired, and the tenant has continued to acknowledge the tenancy, he may show that he has done so through mistake in regard to his landlord's title. In Feuner v. Duplock^ replevin was brought for goods distrained for rent. The defendants avowed for a year's rent of a cottage and land held by the plaintiff as tenant to one of the defendants. It appeared that Duplock bought the premises of one Collins, who took them under a will. Duplock leased to the plaintiff, who paid rent until the death of Collins. At this time a third per- son claimed the premises, alleging that Collins had only a life estate under the will He demanded rent of the plaintiff, who paid it and refused to pay longer to Duplock. Subsequently, however, upon distress he paid again to Duplock for some time, when the third person renewed his claim. The plaintiff acqui- esced again, and again refused to pay to Duplock, who now levied the distress which caused the present replevin. The jury were induced to believe that Duplock knew that he had only an estate for the life of Collins, and that the plaintiff, though aware of the claim of the third party, had paid the rent to Duplock in ignorance of the precise nature of the claim and in ignorance that Duplock's estate expired at the death of Collins. A ver- tenant was at liberty to dispute the title other person then claimed by title para- of the person to whom he had attorned, mount to Nevitt. Butler the defend- ■ays that it was competent for him "to ant was entitled to stand in Nevitt*s explain and render inconclusive acts place ; and the tenant, who could not done under mistake or through mis- dispute Nevitt's title, was held to be representation ; " putting, therefore, mis- equally precluded from disputing But- take and misrepresentation for that ler*8. The judges put it upon this purpose upon the same footing. So ground, either that the defendant But- far, I think, it was admitted at the ler ratified the demise, or that there bar that the cases were uniform. But was a fresh demise by him ; and in a case was referred to, Hall v. Butler, either case the tenant could not dis- 10 Ad. k E. 204, which it is contended pute Butler's title. Now, it will be oh- establishes a different doctrine. Now, I served that in either case the tenant think the doctrine of that case is by was disputing the title of the person no means inconsistent with the former from whom he derived his tenancy, and cases, but completely and entirely con- not the title of a party claiming through aistent with them. In that case the such person. There is nothing, there- tenant took possession and held under fore, at all inconsistent in the doctrine a person named Nevitt who afterwards of that case with the doctrine of all the directed the tenant to pay his rent in preceding cases.' future to the defendant Butler. An- ^ 2 Bing. 10; a. c. 9 Moore, S8. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 625 diet was therefore foand for the plaintiflf; and it was now moved that it should be set aside on the ground that the pay- ment of rent to Duplock by the plaintifif after he became aware of the adverse claim was an acknowledgment of Duplock as landlord, equivalent to a new taking. But the court held otherwise.^ The estoppel of the tenant applies, certainly in the absence of fraud or mistake, where he has taken a new lease, while still in possession from the same landlord. In such a case there arises what is called a surrender of the old lease by operation of law. The term * surrender by operation of law,' according to Mr. Baron Parke, is applied where an owner of a particular estate has been party to an act the validity of which he has be- come estopped to dispute, — an act which would not be valid if his particular estate continued to exist. Among other examples he gives the one here mentioned, of a new lease. ' Thus,' he says, ' if the lessee for years accepts a new lease from his lessor, he is estopped from saying that his lessor had not power to make the new lease ; and as the lessor could not do this until the prior lease had been surrendered, the law says that the acceptance of such new lease is of itself a surrender of the former.' « The tenant or his assignee, it may then be broadly stated, is ^ Best, C. J. referring to the general but before we can decide whether an principle that the tenant may show that attornment has taken place we must his landlord's title has expired, said : look at the circumstances and see * Yet if he enters on a new tenancy, he whether they do or not rebut the pre- shaU be bound ; but before he can be sumption of an attornment, and the 80 bound it must appear that he was circumstances of the present case repel acquainted with all the circumstances any such presumption.' of the landlord's title. The landlord ^ Reed v. Lyon, 13 Mees. & W. 286, before he enters into any new contract 805. But quaere whether accepting a must say openly, '* My former title is new tenant, with consent of the former at an end ; will you, notwithstanding, lessee, will work a surreuder in law ? go on ? " The defendant in the present Beed v, Lyon decides the question in case knew that his title was at an end ; the negative ; so does Creagh v. Blood, was it honest in him to persist in his 3 Jones & L. 133. Contra, Thomas v, claim, and to call for rent under such Cook, 2 Bam. & Aid. 119 ; Walker o. circumstances ? There is no ground Richardson, 2 Mees. & W. 882 ; Nickells whatever for saying that any attorn- v, Atberstone, 10 Q. B. 944. See Eve- xnent took place. Payment of rent may rest & Strode, Estoppel, 268 et seq. indeed be evidence of an attornment; 526 ESTOPPEL IN PAIS. [CHAP. XVU. not estopped to explain the circumstances under which, being already in possession, he has made an su^knowledgment or an attornment to the plaintiff.^ In Doe d. Plevin v. Brown,* to give a general illustration, an ejectment was brought against the assignees in bankruptcy of John Piatt, who had demised to Joseph Piatt. Subsequently to the demise John, becoming embarrassed, assigned the premises to the plaintiff. He then told Joseph of the assignment, and requested him to give the plaintiffs an acknowledgment; whereupon Joseph gave the plaintiffs a shilling, and agreed with them in writing to sur- render possession to them. Soon after this a fiat in bankruptcy was issued, and John was declared a bankrupt, the defendants being appointed his assignees. The latter now disputed the validity of the transaction by which the premises were assigned to the plaintiffs. But it was insisted for the plaintiffs that as the defendants had come in to defend as landlords of Joseph, they were in no better condition than he ; and that after the payment of the shilling and signing the memorandum by which he agreed to deliver possession to the plaintiffs, he was estopped from disputing their title. But the court ruled otherwise.* 1 Attornment is not necessary, it John Piatt, and the merooraudom signed seems, in Massachusetts upon a change only as a consequence of that payment^ of landlords. See Granger v, Parker, and upon the faith of the same repre- 187 Mass. 229. sentations. If at the very time when s 7 Ad. & £. 447. John Piatt informed Joseph of the as- ' Lord Den man, in deliyering the signment of the lessors of the plaintiff judgment, said : ' No general rule, when he had committed an act of bankruptcy, rightly understood, is more important, and that assignment which he repre- or more strictly to be observed, than sented as valid was in truth void, he that which precludes the tenant from was practising a fraud on Joseph ; and disputing the title of his landlord ; and no case has decided that it would not we may concede that in the present case be open to Joseph to explain under what the defendants stood in the same situa- circumstances he made any attornment tion as Joseph Piatt, and could avail or other acknowledgment. Gregory v. themselves of no defence which was not Doidge, 3 Bing. 474, is a strong and open to him. But he had not received direct authority to the contrary. There his possession first from the lessors of was both the fact of one shilling paid as thd plaintiff, nor was any attempt made an acknowledgment of Doidge's title, to question that title under which he and an agreement with him, after a had received possession. Assuming that statement of the amount of rent, to the one shilling was paid by way of ac- depasture some of his cattle in part knowledgment . . . still, it was paid, payment of the rent. But this was in the first instance, upon the request done on the representation of Doidge's and under the representations made by brother, and in ignorance of a defect SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 627 There has been some conflict upon the question whether the bare taking a lease of land of which the tenant was already in possession may estop him to deny his lessor's title. It is agreed in all the cases, as we have seen, that if the tenant was induced to take the lease by mistake, fraud, or misrepresentation on the part of the lessor, he may dispute his title.^ So of a tenant in common who takes a lease from a wrongful claimant of the remaining interest, after the termination of the lease at all events * On the other hand, a trespasser on lands who accepts a lease and agrees to give up possession when the term expires will be estopped to dispute the lessor's title until surrender.^ Tlie conflict arises in cases in which there is a simple question growing solely out of prior possession and later acceptance of a lease by the same person. In New York and Kentucky it is held that the estoppel prevails ; ^ while in California the contrary doctrine has been held in tw.o recent cases upon great consideration.^ But even in that state it is held that the estoppel arises if the tenant does not prove a para- in his title ; and the Court of Cominon distingoiahing Fuller v. Sweet, 30 Mich. Pleas was clearly of opinion that, under 287. these circumstances, the plaintiff, not ^ Jackson o. Ayres, 14 Johns. 224; having come into possession under Prevot v. Lawrence, 51 N. Y. 219 ; Mc- Doidge, might show that he was not Connell v. Bowdry, 4 T. B. Mon. 392 ; his* landlord. Had even John Piatt Patterson v. Hansel, 4 Bush, 654. See heen the lessor of the plaintiff, it would also Beed v. Lyon, 13 Mees. & W. 285, have heen open for Joseph to have shown 805 ; ante, p. 525 (that hy accepting a a cesser of his title hefore the day of de- new lease the tenant will he estopped to mise ; for that would have heen con- deny a surrender of the old term) ; Cald- sistent with the accepting possession well v. Smith, 77 Ala. 157, 166 ; Lucas from him. Upon the hroad principle, v. Brooks, 18 Wall. 436. however, that it is always open to a * Tewkshury r. Magraff, 33 Cal. 237 ; party, not guilty of laches, to explain Franklin v. Merida, 35 Cal. 668. Saw- and rendfr inconclusive acts done under yer, C. J. dissented in hoth cases. In mistake or through misrepresentation, delivering the opinion of the court in we think this inquiry properly gone Franklin ». Merida Mr. Justice San- into.* derson said : * The doctrine [of estop- * Miller v. McBrier, 14 Serg. t R. pel] is a harsh one, and is never to he 382 ; Swift v. Dean, 11 Vt. 323; Shnltz applied except when to allow the truth V. Elliott, 11 Humph. 183; Franklin to he told would consummate a wrong V, Mends, 35 Cal. 558, 571; Carter to the one party, or enable the other to V. Marshall, 72 lU. 609; Claridge ». secure an unfair advantage. If A being Mackenzie, 4 Man. & G. 143 ; ante, p. in possession of land deliver the pos- 523. session to B upon his request and upon * Fuller ». Sweet, 30 Mich. 237. his promise to return it, with or without ' Campau v. Lafferty, 43 Mich. 429, renl^ at a specified time, or at the will 628 ESTOPPEL IN PAIS. [CHAP. XVII. mount title either in himself or in some one under whom he claims.^ of A, B cannot be allowed while still re- or. ethics can the truth be kept back ? taining possession to dispute A's title, Upon what rational ground, either iu because to allow him to do so would be an action upon the lease for reut or in to allow him to work a wrong against an action for the possession, should B A by depriving him of the advantage be denied the right to show that A had which his possession afforded him, and no title, and therefore no right to the with which he would not have parted rent or possession I If B has promised but for the promise of B that he would to pay rent, or hold the possession for hold it for him, and in his place and it, he having no title, where is the con- stead. But the maxim, " Cessante ra- sideration for B's promise ? Suppose tioiie legis, cessat ipsa lez," must not the title is in C ; B is then legally bound be overlooked, — " Reason is the soul of to pay the value of the use and occupa- the law, and when the reason of any tion to C, and surrender to C, uotwith- particular law ceases, so does the law standing the lease from A. If, then, he itself." If B is in possession and takes cannot be allowed to dispute A's title, a lease from A, the latter parts with B can be legally made to pay rent to A, nothing, and the former has attained and the value of the use and occupation nothing by the transaction. If, however, to C. The doctrine of estoppel between either has gained anything, it is A. He landlord and tenant was never designed has gained rent, and in the event of a to work such a result It was designed controversy a prima facie case as against merely as a shield for the protection of B without proof of title, while B's case the landlord, and not as a sword for the is weakened by so much as a prima facie destruction of the tenant.' Further on case is worth. A may have gained the learned judge proceeds to say that more, for he may have severed an ad- the precise question is ' whether the verse possession and stayed the running bare possession of the tenant at the of the Statute of Limitations; for there time the lease is given and taken is can be no adverse possession while' the sufficient to take the case out of the lease subsists, or until there has been operation of the general rule that the an open repudiation and disavowal of tenant cannot dispute the landlord's the tenancy by B. A's right to sue for title, or whether there must be in addi- possession is postponed, it is true. In tion to the possession of the tenant some that respect only is his relation to the force, fraud, misrepresentation, or mis- property affected by the transaction, ex- take induced by the landlord, beyond cept beneficially ; but for the posses- what is implied in the transaction it- sion which he might have obtained the self (a) by which the tenant was in- rent promised by B is a legal equiva- fluenced to take the lease. The latter lent. Having thus obtained no ad- view is maintained by counsel, while in vantage over A by the transaction, why Tewksbury v, Magraff we declared the should B be estopped from showing former. Counsel does not claim that precisely what he would have been per- force, fraud, misrepresentation, etc., are mitted to show had the transaction not, of themselves, irrespective of the never occurred ? If .A is thus in no fact of possession, sufficient to take the worse plight than he was before the case out of the operation of the general transaction, upon what principle in law rule. If they are, and of that there can • (a) That is, the giving and receiving a title not the landlord's. » HoUoway v. Galliac, i7 Cal. 474. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 629 The doctrine of the California cases seems at first to derive support from a late English case in \vhich it was held that where be no doobt, it follows that on the score considered to be the rule ; and the lat- of principle the fact of possession is a ter case, as the report shows, was sab- false quantity for all the purposes of mitted without argument. Such cases the question. If the bare possession are far from satisfactory, and are not to of the tenant is not enough, and force, be received as conclusive of the law. fraud, misi-epi'esentation, and the like The remaining cases upon which tlie are of themselves enough to take the respondent relies are entirely consist- case out of the operation of the general ent with the rule announced by us in rule, obviously the fact of possession is Tewksbury v. Magraff. In Hall v. But- then wholly immaterial, and constitutes ler, 10 Ad. & K 204, N, having no no quantity in the problem to be solved, title to certain premises, let them by So on the score of logic the argument, parol and received rent. Afterwai-ds if it proves anything, proves too much, another claimant, B, demanded the But it is said that Tewksbury v. Ma- rent ; and N, being satisfied with B's gratf goes further than any previous title, informed his tenant in B's pres- case has gone, and that it cannot be ence that he had given up the premises maintained upon authority. That there to B, who was now the landlord, and are cases where it has been held that that the rent was thenceforth to be paid the bare possession of the tenant at the to B. The tenant acquiesced, and when letting does not relieve him from the B demanded the next quarter's rent, estoppel cannot be denied ; nor can it be paid part of it on account. Lord Chief denied, as we shall presently see, that Justice Den man, Mr. Justice Littledale, there are cases the other way. The and Mr. Justice Patterson, all delivered latter, in our judgment, accord with the opinions to the effect that the tenant reason upon which, as we have seen, was estopped, but put their conclusions the estoppel is founded, but the former upon somewhat different grounds. Lord do not. Of the cases which declare a Denman put his judgment upon two doctrine contrary to the one entertained grounds : first, that N was to be con- by us there are two classes : first, those sidered as the agent of H, and there- in which the facts presented the dry fore that the entry of the tenant was question whether the bare possession of under B's title ; and second, that there the tenant at the letting relieves him was a fresh demise by B, unaccompa- from the estoppel ; and second, those in nied by any misrepresentation as to the which the dry question was not pre- title of B. In this latter ground Lord sented by the facts, and the doctrine Denman implied merely that the pos- was announced merely in the course of session of the tenant of itself made no discussion. The latter are entitled to difference in the result. Mr. Justice no consideration as precedents. For Patterson, however, recognized the con- the former only can that distinction be trary doctrine. He said : "There is a claimed. Of them only two have been distinction between disputing the title called to our attention in which the de- of one who has actually let the party cision turned upon a bare possession by into possession, and of one who after- the tenant at the time of the letting, — wards claims to be entitled. In the McConnell v. Bowdry*s Heirs and Wid- latter case the tenant may generally ow, 4 T. B. Mon. 892, and Jackson v, dispute it by showing title in another." Ayres, 14 Johns. 224. In neither case He then adds: " I am not sure that it was the reason upon which the estoppel [the transaction between N and the is founded considered or applied. In tenant) may not be as an original taking each the court merely stated what it from B himself; for N treats himself 84 5S0 ESTOPPEL IN PAIS. [CHAP. XVH. a person in possession of land under a good title became tenant by attornment to another^ under an arrangement for an assign- as the ageat of B, who adopts the de- consider, the role in Tewksbury v. Ma- mise." This common ground must be gnS is sustained. Chettle v. Pound, 1 considered as the ground upon which Ld. Raym. 746, was action of debt for the judgment in the case rests, in rent. Upon nil debet pleaded the plain- which view the case is entirely con- tiff gave in evidence a note in writing sistent with the rule in this court. In- by which the defendant had agreed to gruham v, Baldwin, 9 N. Y. 45, was a hold for one year, rendering rent of case where the tenant entered under the fifteen pounds sterling. The plaintiff lease, and the landlord afterward con- was grantee of a reversion expectant veyed to the plaintiff, to whom the upon an estate for life, and the tenant tenant then attorned, and it was held for life was dead at the time the note that the tenant could not dispute the was given. The grant to tlie plaintiff title of the plaintiff. Instead of being * was made forty years before, and he at war with Tewksbury v. Magraff, this had never been in possession. The case is entirely consistent with it. We defendant offered to prove a grant of there held that in such a case the tenant the reversion prior to that of the pluin- conld dispute only the derivative title, tiff, and thus show that the plaintiff had By so doing he does not deny the title no title at the time the note in writing of his landlord, but merely that the was given; and it was ruled by Mr. plaintiff has become the grantee of his Chief Justice Holt that the defendant landlord. But beyond that he cannot could do so because the plaintiff had go ; for to do so would be to dispute never been in possession ; bnt if he the title under which he entered. The had, that then the defendant could not other cases are where extrinsic mi»- have given the prior grant in evidence . representation and the like on the part without having been evicted. There of the landlord accompanied the pos- was no pretence that the note in wht- ' session of the tenant at the letting, ing by which the defendant bad agreed when it was held that the tenant was to hold for the plaintiff had been ob- not estopped. Hall v, Benner, 1 Penn. tained by any unfair means not implied 402 ; Hamilton «. Marsden, 6 Binn. in the transaction itself, and the case 45 ; Brown v. Dysinger, 1 Rawle, 408 ; turned wholly upon the bare fact that Miller r. McBrier, 14 Serg. & R. 382 ; the defendant did not receive the pos- Swift V, Dean, 11 Vt. 823 ; Shultz v. session from the plaintiff. Rogers v. Elliott, 11 Humph. 183. Of them it Pitcher, 6 Taunt. 202; was replevin is sufficient to say that they are not for property distrained for rent. The authority upon the question in hand, plaintiff was in possession, and the de- They establish the proposition that a fendant obtained a judgment and elegit tenant who was in possession at the against a moiety of the premises, and time he took his lease, and who was thereafter the plaintiff had paid rent for induced to take it by unfair means, may such moiety. The defendant on whom dispute his landlord's title, — a proposi- the issue of tenancy lay proved the pay- tion which no one disputes. Because ment of rent and rested. The plaintiff they do that, however, they cannot be proposed to answer it by showing that taken as negatively establishing the the defendant was not at the time the proposition that the tenant cannot dis- rent was paid or then legally entitled to pute the title of his landlord solely upon the rent ; to which the defendant ob- the ground that he was in possession jected upon the ground that by the when he took the lease. . . . We now payment of the rent the plaintiff had oome to those cases by which, as we acknowledged the defendant as her land- SECT. I.] ESTOPPEL BY CONTBACT : LEGAL EFFECT. 581 ment (which had never been perfected) between the original lessor and the party to whom the attornment was made, he lord, and was dow estopped from con- transaction, on the part of the defend- testiug his title. It was held that the ants. The judgment went against the plain tiif was not estopped. There was jilaintiff, and there was, thcnfore, no no pretence of any extrinsic misrepre- ground for a new trial except the fact sentation, or the like, on the part of that the plaintiff was in possession the defendant, by which the plaintiff when he attonied. A new trial was had been induced to pay rent. There nevertheless granted ; the court hold- was, therefore, no ground for the rule ing that the attornment did not estop adopted except the possession of the the plaintiff. Cornish v. Searell, 8 plaintiff befora and at the time of the Bam. & C. 471, was assumpsit for attornment ; although there is, as we use and occupation. A, being tenant admit, language in the opinions of the under B and a sequestration having is- judges which unless read by the light sued out of chancery against B» signed of the facts of the case might lead to the following instrument: '*I hereby the inference that the case included attorn and become the tenant of C and express misrepresentation or the like. D, two of the sequestrators named in But it LB well understood that on the the writ of sequestration issued in the score of authority it is the lEacts and said suit in chancery, and to hold tha the judgment thereon which constitute same for such time and on such condi- the case, and not the mere language of tions as may be subsequently agreed the court in announcing its conclusions, upon." It was held, first, that this was Gravenor v. Woodhouse, 1 Bing. 88, was an agreement to become tenant, and re- also an action of replevin for property quired a stamp ; and second, that A, distrained for rent. At the trial the not having received possession from C defendant put in a written attornment and D, might dispute their title. So by which the plaintiff, being in posses- Car as the statement of facts as given by sion at the time as the attornment upon the reporter shows, there was in this its face showed, agreed to hold for one case no suggestion of unfair means not year, and from year to year, at a yearly intrinsic, on the part of C and D, by rent of seventy pounds sterling, without reason of which A was induced to at- prejudice to any right or claim of his torn to them. Yet it has been said own to the premises. It was objected that it was a case of mistake. This on the part of the plaintiff that the Ian- statement has no foundation whatever guage of the avowries was not sustained in the facts of the case, and rests en- by the attornment, and evidence was tirely upon a single word found in the offered of a feoffment made to the plain- opinion of Mr. Justice Bayley, who tiff by a person under whom the defend- said : ** As sequestrators they [the plain- ants claimed, and of certain letters from tiffs, C and D] have no legal right to that person containing expressions which receive the rents. It has been said were said to be adverse to the defendants, that the defendant having agreed to The court, however, thought the avowries become tenant to the plaintiffs cannot sustained by the language of the attorn- dispute their title. If the defendant ment, and rejected the evidence upon had received possession from them he the ground that the plaintiff could not could not dispute their title. In Rogers dispute his tenancy after having made o. Pitcher and Gravenor v. Woodhouse the attornment in question. There was the distinction is pointed out between no pretence, so far as the case shows, the case where a person has actually re- that the attornment had been obtained ceived possession from one who has no by any unfair means not implied in the title^ and the case where he has merely 532 ESTOPPEL IN PAIS. [CHAP. XYU. would not be required after the termination of the lease to give up the possession before he could dispute the lessor's title.^ Without expressing any opinion how the case might have been during the continuation of the lease^ Chief Justice Erie said that he could find no authority for the doctrine that a person taking a lease of his own land was not entitled at the expiration of the term to dispute the title of his lessor.^ But it would seem to attorned by mistake to one who has no aeeka a taking and holding under him- title. In the former case the tenant self by another in possession, from the cannot (except under very special cir- very nature of the case there must be a cumstances) dispute the title; in the representation by him that he is the latter he may." The claim that the owner. The bare proposition to lease case was one of mistake is founded involves sueh a representation ; and if solely upon the use of the word *' mis- he be not the owner, the representation take " in the foregoing passage. There is false. If under such circumstances a was no mistake whatever as to the title party in possession takes a lease, his act of C and D. There could be none ; for can be accounted for upon no rational the instrument which was signed by A theory except that he was influenced by showed upon its face that they were this express or implied representation, only sequestrators, and therefore with- When, therefore, in the opinions of the out legal claim to the rents. It cannot judges such expressions are used, their be supposed that a person in possession sense is fully satisfied, as we consider, will knowingly take a lease from a party by the intrinetic probability that there who has no title to the premises, and it was unfair means employed, or there is not, therefore, a forced use of language was some mistake by which the tenant to speak of it as a "mistake ; " and it was induced to act ; and in our judg- is in that sense that we understand Mr. ment such intrinsic probability not only Justice Bayley. But were it otherwise justifies but requires the courts to look the incautious use of words by the court behind the lease, and unearth the truth, cannot override the facts of the case, or As already suggested, the doctrine of es- limit the foroe of the judgment. It is topi)el was not designed to secure to any very plain that A signed the instrument one an advantage over another, but to with his eyes open, knowing all the facts prevent such a result, and to maintain and circumstances, and that it was con- the status which existed at the outset ; sidered that he was estopped by that act. to protect the landlord in his actual In Jackson v. Cuerden, 2 Johns. Cas. possession against the trickery or sharp 353, the defendant A, being in posses- practice of the tenant, not to enable him sion under B, the supposed proprietor, to impose upon the tenant and there- applied by letter to C as the real owner by to obtain that which before he had to purchase, and requested to be con- not.' sidered as a tenant In ejectment by ^ Accidental Death Ins. Co. o. Mac- C against A it was held that the latter kenzie, 10 C. B. N. s. 870, Am. ed. ; was not estopi>ed by his letter from 8. c. 5 Law T. K. 8. 20. showing that his letter was grounded ^ See Doe d. Jackson v, Wilkinson, on a mistake, or that tkt fee existed in 3 Bam. & C. 413 ; ante, p. 511. See himself or out of the plaintiff , See also also Shelton v. Carrol, 16 Ala. 148; Jackson t\ Spear, 7 Wend. 401. In all Agar v. Young, Car. & M. 78. cases where a party out of posaessioii SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 588 be a safficient ground to sustain the case that the assignment was not perfecteA In a similar case recently before the Supreme Court of Massa- chusetts ^ the tenant^ who had attorned to the heirs of his lessors^ was held estopped to set up the title of a third person, though it appeared that he was ignorant of her title when he made the attornment, and though she had forbidden him to pay rent to the plaintiffs, demanding that it should be paid to herself. It did not appear, however, that he had ever attorned to her, or that he had been evicted, or that he had renounced his tenancy under the plaintiffs. So too in another recent case ^ in the same state a defendant in a suit for possession was not allowed to prove that he had been in possession in right of his wife prior to taking a lease from the plaintiif, and that before the end of the term he had given notice to the plaintiff that he should renounce his title and claim thenceforth under that of his wife. Nothing was said of fraud or mistake. And a similar ruling in effect was made in Hogan v. Harley.^ The prior case of Cobb v, Arnold * is still stronger. This was an action for use and occupation ; and the defendant, who had taken a lease from the plaintiff, offered to prove that for thii^ teen years before the lease was taken, and down to the time of the trial, twelve years later, he had been in quiet, exclusive, and adverse possession of the land, using and treating it as his own all the time. But the evidence was excluded. The question under consideration has nothing to do with the case of an attornment to one claiming under the original lessor. Nothing is more certain than that an attornment to such a per- son leaves the tenant ordinarily in precisely the same position (so far as the question of the estoppel to deny the title of the lessor is concerned) as he was with the original landlord ; he cannot dispute the title in the one case more than in the other,^ ^ Hawes v. Shaw, 100 Mass. 187. stranger, expiry of title, and construe- SeeTmftonv. Hawes, 102 Mass. 533. tive eviction by judgment. See also ^ Miller v. Lang, 99 Mass.*13. First Parish v. Dow, 3 Allen, 369. • 8 Allen, 525. ^ Otis v. McMillan, 70 Ala. 46, 53 ; * 8 Met 398. Some of the excep- Dobson v. Culpepper, 23 Gratt. 352. tions to the rule are stated in this case ; The natura of the alienation of the re- all of them, however, are covered by the version is not material. Otis v. Mc* statements in our text, — entry under a MillaD, supra. 534 ESTOPPEL IN PAIS. [CHAP. XYH. except by showing that the derivative title is defective, or that the attornment was made under the influence of fraud or mis- take, or the like.^ The only room for the question raised in California is either in the case of an original lease, or when the attornment is made to a stranger to the title of the lessor. In such a case is bare possession in the tenant, without mistake, fraud, or the like, in the leasing or attornment sufficient to remove the estoppel? The- landlord may still have changed his position, reasonably induced by the lessee's acceptance of a tenancy. There would then be the elements of an estoppel in pais; and without stopping longer than to refer to the fact that the doctrine that the act of the party against whom the estoppel is claimed must have been vnlful in a literal sense, if it ever prevailed, has been overruled,^ it is enough to say that the case might present fea- tures quite as conclusive as those in the case of the estoppel of a tenant who has received possession from his landlord ; for taking possession from a landlord is only one way in which a change of position may take place. It is immaterial what may be the nature or extent of the change, provided there has been a sub- stantial change in fact, so that the landlord would be placed in a less advantageous position by allowing the denial of his title than he would have occupied had not the tenancy been created. A very important qualification of the rule of the tenant's es- toppel prevails in the case of an actual disclaimer. If the ten- ant disclaim to hold of his lessor, and notice of the fact is brought home to the lessor, the tenant's possession then becomes adverse ; the lessor may at once eject him from the premises ; and if he fails to do so before the period of limitation has expired, the tenant may then set up his own title acquired by adverse posses- sion, or the title of any other person under whom he claims to hold. But he cannot set up such title in an action brought by the lessor before the expiration of the period of limitation.' 1 Carter v, Marshall, 72 III. 609. Waldenv. Bodley, 14 Peters, 156, 162 ; s Cornish v. Abington, 4 Hurl. & N. Zeller v, Eckert, 4 How. 289 ; Doe d. 549. Clan v, Clarke, Peake, Add. Cas. 239 ; • See WUIison v. Watkina, 8 Peters, WeUs «. Sheerer, 79 Ala. 142 ; Taylor, 43 ; Peyton v. Stith, 5 Peters, 485, 491 ; Land. & T. § 522, and cases cited. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT, 635 The subject is exhaustively reviewed in the case first cited, and stated to apply as well to the relations of mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where a person obtains possession of real estate belonging to an- other in subordination to his title. In this case Willison had been a tenant of one Bordeaux under whom the plaintiff claimed, and afterwards Bordeaux was apprised that Willison claimed the premises by adverse title. It appeared that Willison had been in possession a sufKcient length of time since the fact of his disclaimer came to the knowledge of Bordeaux to acquire a title under the Statute of Limitations, provided it should be held that he was entitled to the benefits of the statute. The action was trespass to try title ; and the plaintiff contended that Wil- lison was precluded from setting up title in himself, without first surrendering possession. But the court held otherwise. It was an undoubted principle of law, the court observed, that a tenant could not dispute his landlord's title either by setting up title in himself or in a third person during the existence of the tenancy. He could not change the character of the tenure by his own act merely, so as to enable him to hold against his land- lord (who reposed under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and re^dy to be surrendered by its termination) by the lapse of time, or by demand of possession. But the court did not think that the doctrine in this or in any of the analogous relations had been adopted to the extent contended for in the present case, which presented a disclaimer by a tenant with the knowledge of his landlord, and an unbroken possession beyond the period of limi- tation. By the known disclaimer of Willison the tenancy had been terminated, and Bordeaux had the right to treat him as a wrongdoer holding adversely; and having the right to do so, he was bound to exercise his power. It would be an anomalous possession which in relation to one party was adverse and in re- lation to the other fiduciary, if after a disclaimer known to the landlord the tenant forfeited his possession and all the benefits of the lease. No injury could be done the landlord unless by his own laches. If he sued within the period of limitation, he would prevail ; and if he suffered the time to pass by without 686 ESTOPPEL IN PAIS. [CHAP. XYII. suit, it was but the common case of a party losing his rights by his own negligence.* The cases show that a tenant may prove that one to whom he has paid rent by attornment has no derivative title from his orig- inal lessor. Doe d. Higginbotham v. Barton^ was such a case. It was an ejectment for certain lands in Cheshire. On the trial the plaintiff proved that one Morton, being seised in fee of the premises in controversy, demised a part to the defendant Barton as tenant from year to year. Subsequently he assigned all the premises by way of mortgage to Higginbotham the plaintiff; whereupon Barton on demand made by the plaintiff paid the rent to him for several years. In the mean time the plaintiff demised the part not leased to Barton to one Bullock, who hav- ing paid rent for a year and upwards then underlet to Warburton the other defendant Subsequently both Barton and Bullock refused to pay I'ent to the plaintiff, who then served notices to quit. The defence was that Morton had mortgaged the same premises to one Marriott in fee prior to the mortgage to the plaintiff, but that he (Mortou) had remained in possession ; that Marriott had conveyed the premises in fee to one Woodhead, and that Woodhead had given notice to the defendants to pay the rent to him, which they obeyed, refusing to pay longer to * The court having shown that the nte protect him, as well as any other leading authorities (Hovenden v. An- fraudulent trustee, from the time the nesley, 2 Schoale & L. 607 ; Kane v. fraud is discovered or known to the Bloodgood, 7 Johns. Ch. 90, 122 ; landlord ? If he suffers the tenant to Hughes V. Edwards, 9 Wheat. 490, 497 ; retain possession twenty years after a and other caae^ relating to trusts and tenancy is disavowed, and cannot ac- mortgages) supported the rule which it count for his delay in bringing his suit, bad adopted, then said : *A11 these why should he he exempted from the principles bear directly on the case operation of the statute more than the now before us ; they are well-settled mortgagor or the mortgagee ? We can and unquestioned niles in courts of law perceive no good reasons for allowing and equity, and necessarily lead to the this peculiar and exclusive privilege to same conclusion to which this court has a lessor ; we can find no rule of law or arrived. The relations created by a equity which makes it a matter of duty lease are not more sacred than those of to do it, and have no hesitation in de- a trust or a mortgage. By setting up ciding that in this case the Statute of or attorning to a title adverse to his Limitations is a bar to the plaintiff's landlord the tenant commits a fraud action.' as much as by the breach of any other * 11 Ad. & E. 807. trust. Why, then, should not the stat- SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. ' 687 the plaintiff. The question raised was whether the defendants were estopped to make this defence. The court held that they were not.^ This doctrine that a tenant is not estopped to deny the valid- ity of a derivative title is also illustrated by the recent case of Hilbourn v. Fogg.* This was an action of tort for ejecting the plaintiff from a room in a house in Gharlestown. It appeared that McGrath, one of the defendants, was tenant at will of the house, and that the plaintiff was tenant at will under her. Sub- sequently McGrath made a written lease to Fogg, who with the assistance of McGrath and other defendants, after due notice to quit, entered the plaintiff's room and removed her effects. It was contended on the part of the defendants that the plaintiff was estopped to maintain the action ; but the court ruled other- wise.* 1 Lord Denman, who delivered the to Morton and having notice of a sub- judgment in this important case, said : sequent mortgage by Morton to the ' Supposing the facts to be as above lessor of the plaintiff, had no right to stated, it is clear that the lessor of the question it ; nor until he received plaintiff never had any legal estate, notice from Woodhead of the prior and he must rely on the rule with re- mortgage had he any reason to doubt gard to landlord and tenant. That that the legal estate had passed to the rule is fully established, viz. that the lessor of the plaintiff. He may truly tenant cannot deny that the person by be said to have paid the rent under a whom he was let into possession had mistake; and then he may show, not title at that time, but he may show that Morton had not a title by which that such title is determined. Doe d. he (Barton) would be estopped as Knight V. Smythe, 4 Maule & S. 847. against Morton himself, but that Mor- With respect to the title of a person to ton's title was not such a one as would whom the tenant has paid rent, but by enable him to pass a legal estate to the whom he was not let into possession, lessor of the plaintiff. If the evidence he is not concluded by payment of had been received, he would have shown such rent if he can show that it was that Morton had only the equity of re- paid under a mistake. These defend- demption, and that nothing more passed ants, therefore, stand in different situa- to the lessor of the plaintiff from Mor- tiona Warburton is precluded from ton. And this, we think, he wsa at lib- denying that the lessor of the plaintiff erty to show, though il there had been a ever had a title, and must show that demise in the declaration by Morton such title as he had is determined", himself it might have been otherwise.' Barton is precluded from denying that ^ 99 Mass. 11. Morton had a title, but he is at liberty * The court by Mr. Justice Gray to deny that the lessor of the plaintiff observed that the well-settled rule of ever had any derivative title from Mor- law by which a tenant entering under ton unless the payment of rent con- an oral lease is estopped so long as he eludes him. We do not think that he continues in possession thereunder to is so concluded because he, being tenant deny the lessor's title at the time of 638 ESTOPPEL IN PAIS. [CHAP. XTIL The tort in this case, it will be noticed, was committed by Fogg, and McGrath and the other defendants evidently stood in the relation of agents to him. Had McGrath expelled the plain- tiff after properly putting an end to the lease, it is plain that the action could not have been maintained ; for the plaintiff would not have been permitted to question the lessor's title. The ruling in the case was simply to the effect that the plaintiff was not estopped to say that no title had passed by the subsequent lease to Fogg. When the relation of landlord and tenant is established, the rule of estoppel upon the tenant prevails though the tenancy be making the lease, as against the lessor, been strictly tenant at will of another, his heii-s and assigns, is founded on the no doubt his tenant might have sliown injustice of allowing one who has ob- the determination of that will on the tained possession by admitting the title part of the lessor's lessor. In this case of another to deny the title, and in the plaintiff occu])ied her room as ten- case of failure in proof of it hold the ant at will of McGrath, and while this premises. *The rule holds good,' said tenancy at will continued might main- the court, ' where the actual title of tain an action against McGrath or any the lessor is that of a mere tenant at person claiming under her for disturb- will, and applies in every form of action ing the plaintiff's possession. Dick- by which the lessor may seek to assert inson i;. Goodspeed, 8 Cush. 119. Mc« the rights reserved or promised to him Grath made a written lease of the room in his lease. Cobnrn v. Palmer, 8 to Fogg, which if the lessor had had a Cush. 124 ; Towns v, Butterfield, 97 sufficient title would have terminated Mass. 105. But it is equally well set- the tenancy at will of the plaintiff, tied that the tenant is not estopped to and prevented her from maintaining deny that since his own entry into this action for the removal of her goods, possession his lessor's title has expired, Curtis v, Galvin, 1 Allen, 215 : Pi-ntt v. either by its own limitation, or by the Farrer, 10 Allen, 519. But the report act of the lessor, or by eviction by finds that McGrath did not own the es- title paramount ; and that when the tate, and was herself a mere tt'uant at estoppel is set up by one claiming as will of the rightful owner, and could assignee of the lessor, the tenant may not therefore make a valid alienation show that swch assignment was inef- by written lease which would give fectnal to pass the lessor's title. Eng- Fogg .a better title than she had previ- Innd V, Slade, 4 T. R. 682 ; Doe d. onsly granted to the plaintiff. Cooper Marriott v, Edwards, 5 Bam. & Ad. v. Adams, 6 Cush. 87, 90. This fact is i0t>5 ; Doe d. Higginlwtham o. Bai'ton, in no way inconsistent with her title 11 Ad. & E. 807 ; 8. c. 3 Per. & D. 194 ; as lessor at will of the plaintiff : and the Mountnoy v. Collier, 1 El. & B. 630 ; plaintiff by having entered into posses- London & Xorthwesteni Railw. Co. v. sion as her tenant at will was not es- West, L. R, 2 C. P. 663 ; Despard v. topped to deny that she had any greater Walbridge, 15 N. Y. 874. In Doe [d. estate, and to maintain this action.' Hi^ginbotham] v.>Barton [supra] Ijord To the same effect Palmer «. Bowker, Denman said that if the lessor had 106 Mass. 817. SECT. I.] ESTOPPEL BT CONTRACT : LEGAL EFFECT. 689 created by a deed which shows that the landlord possessed no legal estate,^ unless possibly the nature of the action requires a legal estate to support it, as in the case of ejectment or covenant.^ This doctrine is an important qualification to the rule that there is no estoppel where the truth appears.' ^ Tilyou V. Beynolds, 108 N. Y. 558, clear ; bat that may be said of all les- 563 ; Jolly v, Arbathnot, 4 De 6. & J. 8ors where there is a lease and a tenancy 224 ; Dancer V. Hastings, 12 Moore, 84 ; by estoppel, and where the lessors have 8. c. 4 Bing. 2 ; Morton v. Woods, L. R. frequently no title at all. Here the 4 Q. B. 293 ; Cornish v. Searell, 8 Bam. defendants have an equitable title only, & C. 471. and the question becomes of primary ^ See ante, pp. 362, 363. importance because it is only by estop- * In Jolly V. Arbuthnot, supra, the pel that the defendants can be said to question was whether the relation of have the legal estate, and it is said landlord and tenant had been created by that no estoppel arises where the truth a receivership deed between the receiver appears upon the face of the iiistru- and another party, a bankrupt, so as ment which is the evidence of the agree- to give the receiver the right to distrain ment between the parties ; and it may for rent ; the deed showing an attorn- be taken, as appears on the mortgage ment by the bankrupt to the receiver, deed, that the defendants were not and at the same time showing that the seised of the legal estate, but that it legal title was not in the latter. 'It was in the first mortgagee, Mr. Horn, is contended,' said Lord ChanceUor A number of cases bearing on this Chelmsford, *that the attornment to point have been cited; but when we Aplin [the receiver] had no operation ; come to look at the facts and the ratio not by agreement, because he had no decidendi of each, none of them are interest in the land to which it could directly in point. They were either Upply ; nor by estoppel, because the actions of covenant, in which the cove- deed sets forth the rights and interests nant must be enforceable as an obliga- of all parties, and shows that Aplin had tion at law, or actions of ejectment on no reversion in the premises to which ' a clause of re-entry, where it is per- the power of distress could be incident fectly clear there must be the legal It appears to me, however, that the estate in the plaintiff, and that if it is circumstance of the truth of the case outstanding he cannot succeed. [The appearing upon the deed is a reason cases referred to are Pargeter v, Harris, why the agreement of the parties 7 Q. B. 708 ; Cnthbertson v, Irving, which it embodies should be carried 4 Hurl, k N. 742; s. c. in error, 6 out, either by giving effect to their in- Hurl. & N. 185 ; Saunders v. Merry- tentions in the manner which they l)ave weather, 3 Hurl. & C. 902. See ante, prescrilied, or by way of estoppel to pp. 362, 363.] But even if any of the prevent their denying the right to do decisions or dicta wen) to lead to the the acts which they have authorized to conclusion that where the truth appears be done.' In the still more recent case there can be no estoppel, that doctrine of Morton v. Woods, above cited, in must be taken to be ovemiled by the case which the same point arose, Kelly, of Jolly v. Arbuthnot, 4 De G. & J. 224. C. B. in delivering judgment, remarked . . . There is undoubtedly this difference concerning the objection that the de- between Jolly v. Arbuthnot and the fendants . not having the legal estate present case, that the mortgagee was a could have no right of distress : ' That party to the deed in that case, whereas they had not in fact the legal estate is the original mortgagee 19 not a party 540 ESTOPPEL IN PAIS. [CHAP. XVII. The only case directly holding that where the deed shows that the lessor had not a legal reversion, the lessee may dispute the title in an action upon the covenants, is Pargeter v. Harris ; ^ though the doctrine is referred to with approval in a dictum by Mr. Baron Martin in the subsequent case of Cuthbertson v. Irving.^ The distinction must be a fine one which will allow the tenant in a lease showing the facts to dispute the title in ' covenant, and refuse him the power in a contest concerning the validity of a distress. The doctrine of the cases of Jolly t?. Arbuthnot and Morton v. Woods, above cited; seems sound, and they leave a very narrow ground for Pargeter v. Harris and the like cases to stand upon. The question arose again in a late case in the Exchequer.' In this case the plaintiff had granted a lease to the defendant which recited that it was subject to a prior lease to other per- sons. The action was ejectment, and it was admitted that the covenant to repair had been broken and tliat rent had been paid to the plaintiff under his lease. It was objected by the defend- ant that the plaintiff could Hot recover because it appeared from the face of the lease that there was an outstanding title. But the objection was overruled.* A similar point arose in the Pennsylvania case of Holt v, to the agreement in this ; but it is the * i Harl. & N. 742. creation of the tenancy, or the estoppel * Dake v. Ashby, 7 Hurl. & N. which arises from the creation of the 600. relation of landlord and tenant by * * The question/ said the Chief Baron agreement between the parties, that in the course of the argument, 'is makes the actual Isgal estate unneces- whether, when a person accepts a lease sary to support the distress, and not the admitting upon the face of it .some in- consent of the third party in whom firmity of title in the lessor, the doc- the legal estate is. Therefore the two trine applies that thera is no estoppel cases are essentially identical, and if where all the facts appear. I do not we had any doubt on the subject, which think that that technical doctrine of es- we have not, we should be bound by toppel applies to the case of landlord that authority ; and we therefore hold and tenant. Suppose a mortgagor in that the right of distress, so far- as this possession grants a lease ; could the point of the want of the legal estate is lessee dispute his title because the lesfal concerned, is unaffected by the fact estate is in the mortgag«>e ? * See Ciith- that such want of the estate appeared bertson o. Irving, 4 Hurl. & N. 742 ; on the agreement by which the relation 8. c. in error, 6 Hurl. & N. 135. But of landlord and tenant was created be- he said the case would have been differ- tween the parties.' ent had the defendant obtained an a«- 1 7 Q. 6. 708. signment of the prior lease. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 641 Martin.^ This was an ejectment by Martin, in which it ap- peared that he, being owner of an Undivided seventh part of a house, leased the whole in his own name as agent. Having conveyed away his interest, he brought the present action. The defendant Holt attempted to show that the owners of the other interests had revoked Martin's agency, but the court held the evidence inadmissible.' The doctrine that the tenant cannot dispute his landlord's title is not confined to the action of ejectment ; that was ex- pressly decided in Delaney v. Fox.* This case was an action of trespass upon certain premises. The defendant pleaded liberum t^nementum, and a special plea showing a tenancy of the plain- tiff under him, and its determination by notice. The plaintiff gave evidence that at the time she was let into possession by the defendant he had no title, but that the title was in a third person to whom the plaintiff under a threat of distress paid rent It was objected that she was estopped from disputing the de- fendant's title ; but counsel on the other side contended that the rule of estoppel was confined to the action of ejectment, and did not apply to trespass.^ The court decided in favor of the de- * 51 Penn. St. 499. the legal title, was be an agent for pnr- ' 'At first sight/ said Agnew, J. poees connected with the title he held? for the courts ' this might seem com- None of these appear by the lease. And petent, but a close inspection discloses a if agent for others, were they the same direct conflict with the rule that a ten- persons indicated in the offer ? If not, ant shall not dispute the title of his clearly Martin could rebut the proof landlord as it was when he took the offered. His calling himself agent was lease. It was Martin who let the prem- no admission of title in the persons ises to Holt. The relation of landlord named in the offer. Thus, it was a and tenant, by the terms of the lease, direct attempt to deny the title of Mar- was exclusively between them. The tin ; for, if competent, it showed title in covenants were those of Martin and thiid persons, and brought on directly Holt alone, and the sealing and deliver- a conflict upon the title of Martin, and ing also. Upon any breach of the les- not upon the mere termination of the sor's covenants the action would lie lease.' against Martin and no other. Martin * 2 C. B. N. 8. 768. So in Ward v, simply described himself as " agent," no Byan. 10 Ir. R. C. L. 17. more, no less, and it is thought this * Referring to the language of Pol- opened the door to the proof. But lock, C. B. in Watson v. Lane, 11 Ex. agent for whom, or for what t We are 769, citing Heath, J. in Ogle v, Atkin- not informed. Was he a mere agent son, 6 Taunt 769. without an estate ; or, himself holding 542 ' ESTOPPEL IN PAIS. [CHAP. XYII. fendant. Chief Jastice Cockburn said that upon piinciple there was no distinction between tlie case of ejectment and the present case. There coald be no substantial ditference between the landlord's asserting his title by bringing ejectment at the im- mediate expiration of the term, and his asserting it in defence of an action of trespass at a future period. On the other hand, there had not even been a constructive eviction in the case ; and even if there had been, he doubted whether such an eviction could be considered as a determination of the landlord's title.^ The rule of the tenant's estoppel prevails against one who is in possession of land under a mefre license.^ On the other hand, it is said that if a person take possession of land under a mort- gagee, not as his tenant but as devisee of the mortgagor, to keep possession, keep the fences in repair, pay the taxes, and enjoy the rents and profits, without paying rent, and not recognizing an absolute title in the mortgagee, he will not be estopped to dispute the mortgagee's title.^ Whether the estoppel prevails where the tenancy is created by act of the law is not quite clear.^ It has been held that a widow by continuing in possession of her husband's land will be estopped against the heir to deny his title on the ground that she thus becomes tenant to the heir;^ also that she would be estopped against the husband's grantee.^ So too it is held that a tenant by the curtesy cannot allege that the title of his wife was defective against one who claims under the wife.^ The case cited was an action of waste alleged to have been committed by the defendant occupying as tenant for life. The plaintiff claimed title under a deed from the defendant's wife. It appeared that ^ That constractiye eviction is saffi- * SaUer v. Signer, 37 Barb. 829. cient to remove the estoppel in Amer- * See Tully v. Tolly, 71 CaL 338, ica, and probably aiso in England, see trustee, ante, pp. 521, 522. * Den d. Bufferlow v. Newsom, 1 « Glynn o. George, 20 N. H. 114 ; Dev. 208 ; Den d. Williams p. Bennett, Doe d. Johnson v. Baytnp, 3 Ad. & E. 4 Ired. 122 ; Den d. Grandy v. Bailey, 188, Coleridge, J.; Wilson t7. Maltby, 13 Ired. 221. 69 N. Y. 126 J Hamilton Hydr. Co. v. > Ibid. ancinnati B. Co., 89 Ohio St 341 ; ^ Hoigw v. Lvned, 10 Met 50. Dills V, Hampton, 92 N. Car. 666. SECT. I.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 548 the latter's title bad been derived from a location which was irregular and dei'ectiva The defendant for this reason objected that the location had given no title to his wife ; but the court overruled the objection. Mr. Justice Hubbard said that the title of the plaintiff was voidable, but the defendant was not in a position to take advantage of any defect in it, since he had entered under his wife's right, and held as tenant by the curtesy, subject to the rights of the children. He was estopped to deny the title under which he entered by alleging that he was now a disseisor. However, in Vance v, Johnson ^ it appeared that Vance had conveyed the real estate in question in trust to one Bailey, but that Vance had remained in possession until his death, and that his widow continued in possession thereafter. After the conveyance in trust the land was sold under execution to one Washington, from whom the widow of Vance took a lease ; and the question was whether in her relation to Bailey she had the legal right to take the lease from Washington. The court decided in the affirmative, deeming the widow entitled to disclaim any holding under Bailey.* ^10 Humph. 2H. is not properly tenant at wiU to the ''This rule [of tenant's estoppel] mortgagee, for he is. not to pay him cannot be held applicable,* said MoKin- rent. He is so only quodammodo. ney, J. in delivering judgment, ' to the Kothing is more apt to confound than a same extent to a case where no such simile. When the court or counsel call actual relation exists ; where the person a mortgagor a tenant at will, it is in possession did not receive such pos- barely a comparison. He is like a ten- session from the legal owner; where ant at will." The same doctrine is held there exists between them no privity by BuUer, J. in the case of Birch v. either of estate or contract ; where there Wright, 1 T. B. 878, 883. ' All the is no obligation on the part of the per- authorities, however, concur that the son in possession to pay. rent or other possession of the mortgagor is not to be service, or pledge of faith to restore regarded as adverse to the mortgagee ; possession ; in short, where there exist and so as regards the parties to a deed no reciprocal duties or obligations bind- of trust, which stands on the same ing equally upon the parties, or either principle. In other words, the pos- of them. The relation of mortgagor session in such case will be presumed to (suffered to remain in possession until be in subordination to the legal title foreclosure) to the mortgagee ii^in some until proof of actual disclaimer. And respects like that of a tenancy at will, this principle applies to all cases where but it is not strictly such. And the re- the relation of landlord and tenant is lation of the conveyor in a deed of trust created by mere operation of law. But to the tnistee is exactly similar. In the there exists this important distinction case of Moaa «. Sallimore, 1 Doug. 279, between the actual and constructive re- 282, Lord Mansfield says, " A mortgagor lations.' The tenant in the former case 544 ESTOPPEL IN PAIS. [CHAP. XVII. In regard to the relation of mortgagor and mortgagee^ without attempting to define it it is sufficient to say that when the mort- gagor retains possession, a relation is created similar to that of landlord and tenant, and the mortgagor is estopped to deny the title of the mortgagee;^ unless after a distinct disclaimer brought to the knowledge of the latter he has acquired a title by adverse possession,^ or unless the mortgage is void by statute.' By the mortgage the mortgagor professes to convey, and thus declares that he has an interest coextensive with what he under- ifi not permitted to disclaim the land- who remains in possession of the land lord's title, or to set up an adverse sold at sheriff's sale, from requiring the possession, so long as the relation sub- purchaser in an action of ejectment sists {a). But in the latter case there is against the former, to produce any no such restraint imposed upon the quasi other evidence of title than proof of his tenant, as he is styled in some of the (the defendant's) possession, a judgment cases. He is not within the principle and execution against him, a sale and that precludes a tenant from setting up purchase thereon, and a deed from the an adverse title or possession. His re- sheriff.' lation is founded upon mere acquaint- ^ Stewart v. Anderson, 10 Ala. 508 ; ance, and may be terminated at any Jones v, Reese, 65 Ala. 134 ; Farris v. moment. He may while in possession Houston, 74 Ala. 162 ; Leary v. New, attorn to another, or acquire an adverse 90 Ind. 502 ; Turner v. First National title in himself ; and in either case the Bank, 78 Ind. 19. Purchasers under possession is thereby changed, and the decree of foreclosure also have the bene- Statuteof Limitations will attach. And fit of the estoppel. Leary v. New, all this is perfectly consistent with the supra. doctrine maintained by this court in the ^ Doe d. Higginbotham v. Barton, cases of Mitchell v. Lipe, 8 Yerg. 179, 11 Ad. k E. 307, 314; Partridge v, and Wood v. Turner, 8 Humph. 686, Bere, 6 Bam. & Aid. 604 ; Hitchman 689, and other cases upon the same v, Waltman, 4 Mees. & W. 409 ; Moss subject. In the former case it was held r. Sallimore, 1 Doug. 279, 282 ; Birch that the title of the defendant in an v. Wright, 1 T. R. 378, 383 ; Fisher v, execution, being transferred to the pur- Milmine, 94 III. 828 ; Vance r. Johnson, chaser by the sale and sheriff's deed, his 10 Humph. 214 ; Willison v. Watkins, possession afterwards was consistent 8 Peters, 43,. 52 ; Strong v. AVaddell, with the purchaser's title; and he 56. Ala. 471. Of course a mortgagor would, therefore, be deemed to con- with warranty or recitals (express or tinue the possession in the character of implied by statute) cannot say that he a quasi tenant at will until an actual had no title when he executed the mort- disseisin or disclaimer on his part. In gage. Sutlive v. Jones, 61 Ga. 676 ; Woodv. Turner it is held that the only Pancoast v. Travelers' Ins. Co., 79 Ind. restriction imposed by such quasi ten- 172. ancy is to preclude the execution debtor, * Brewster v. Madden, 15 Eans. 249. {a) That is, the disclaimer cannot avail him during the tenancy ; but after the tenancy has expired he may avail himself of it from the time it was made known to the landlord, and set up a title in himself under the Statute of Limitations. Willison 9. Watkins, 3 Peters, 43 ; ante, p. 584. SECT. II.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 646 takes to transfer ; and he will not be heard to say, in contradio tion of his own deed, or in opposition to a claim founded thereon, that he was guilty of a falsehood and had no estate or interest therein.^ But a mortgagor does not, in mere virtue of retaining possession, become tenant to a mortgagee prior to his own.^ The same principle seems to prevail in the case of those trusts which are the mere creatures of a court of equity.® The posses- sion of the trustee not being adverse to the cestui que trust, the Statute of Limitations does not run between them unless there is a clear repudiation of the trust brought home to the party so as to require him to act as upon a clearly asserted adverse title.* Indeed^ the principle upon which such cases rest is one of the broadest in the law, to wit, that one who has received property or money from another shall not dispute the title of that person or his right to do what he has done.^ Some special phases of this doctrine remain to be examined. § 2. Estoppd under Contract for Purchase, The relation which the purchaser of land not fully paid for, or bought subject to condition,^ bears to the vendor is held to te the same in effect in equity as that between landlord and tenant so far as the doctrine of estoppel is concerned.^ The purchaser 1 Stewart v. AnderaoD, 10 Ala. 508, 522 ; Baker v. Whiting, 8 Sum. 475 ; qnoted in Jones v. Reese, 65 Ala. 134, O'Halloran v, Fitzgerald, 71 111. 58. 180. See Perry, Trusts, §§ 868, 864, and cases 2 Holmes v. Turner's Falls Ca, 142 cited. Mass. 590, 594. Field, J. : * A prior * See Hadley v. State, 66 Ind. 271 ; mortgagiee might enter, and the tenant Biinger v, Roddy, 70 Ind. 26 ; 0' Hal- might attorn to him, and this would be loran v, Fitzgerald, 71 111. 53 ; Keyser a good defence to an action by the mort- v, Simmons, 16 Fla. 268 ; McKee v, gagor, or those claiming under him, for Monterey Co., 51 Cal. 275 ; Placer Co. rent accruing subsequently to the entry; v. Astin, 8 Cal. 803; Ferryman v. but until such an entry, and until the Greenville, 51 Ala. 507. lessee attorns to the mortgagee, or until • Wobum v, Henshaw, 101 Mass. the mortgagee requires the lessee to pay 103 ; O'Brien v. Wetherell, 14 Kan. rent to him, the mortgagee and the 616. lessee are strangers.* "^ Quoted in Marsh v. Thompson, 102 » Kane v. Bloodgood, 7 Johns. Ch. Ind. 272, 277 ; Crumb v. Wright, 97 90 ; Willison v. Watkins. 3 Peters, Mo. 13, 18, 19 ; Galloway v. Finley, 48, 52 ; Vance v. Johnson, 10 Humph. 12 Peters, 264, 295 ; Willison r. Wat- 214. kins, 3 Peters, 43, 48 ; Bush v, Mar- ♦ Merriam v, Hassam, 14 Allen, 516, shall, 6 How. 284, 291 ; Bowers v. Kee- 35 646 ESTOPPEL IN PAIS. [CHAP. XVU. cannot, while claiming under the deed, refuse to perform duties imposed by it, on the gi'ound that it is invalid ; * nor can he set up an outstanding title against the vendor in har of a pro- ceeding by the latter to compel payment of the purchase-money or to enforce the penalty of a broken condition.^ In Bush v, Marshall, just cited, it appeared that Bush having purchased the premises in controversy from one of the plaintiffs, who at the time had no title, subsequently acquired the title, and then sought to escape the payment of the residue of the purchase- money for which Bush had given a mortgage. The plaintiffs now filed a bill to foreclose the mortgage ; and their suit was sustained.^ The doctrine of this case is that until the grantee has paid for the land he holds in respect of the paymerU a relation of duty to the grantor similar to that of a tenant to his landlord.^ seeker, 14 Iowa, 801, 305; Strong v, him; and acts done to perfect the title Wad dell, 56 Ala. 471 ; Raley v. Koss, by the former, when in possession of the 59 Ga. 862 ; McMath v. Teel, 64 Ga. land, inure to the benefit of him under 595 ; Shorman v. £akin, 47 Ark. 851, whom the possession was obtained, and 354. In Willison i;. Watkins, supra, through whom a knowledge of a defect the court remarked that the same prin- of title was obtained. The vendor and ciple applies also between trustee and vendee stand in the relation of landlord cestui que trust, and generally to all and tenant. The vendee cannot disavow cases where one man obtains possession the vendor's title, (a) In the present of real estate belonging to another, by a case the vendee has brought in for recognition of his title. twenty dollars the legal title to a prop- ^ Wobum V. Henshaw, 101 Mass. 103. erty worth more than two thousand, the ' O'Brien v, Wetheretl, 14 Kan. 616. possession of which he received from his • * As to lot No. 7,* said Grier, J. vendor ; and not only so, but contrary for the court, ' Bush having obtained to good faith and fair dealing he has in- possession under Whitesides cannot by terfered to overbid his vendor, who was the purchase of an outstanding title using every endeavor to purc^hase the defeat the claim of his vendor. It is title for the use of his vendee in fulfil- a well-established rule of equity that if ment of his own covenants. The appet- a vendee buys up a better title than lant has paid no more . . • than he that of the vendor, and the vendor was agreed to pay for the purpose of getting guilty of no fraud, he can only be com- the legal title. He has got a good title pelled to refund to the vendee the to the property, and ought in justice amount of money paid for the better and equity to pay for it the full consid- title. Searcy v. Kirkpatrick, Cooke, oration which he has covenanted to 211 ; Mitchel v, Barry, 4 Hayw. 186. pay.' Equity treats the purchaser as a trustee ^ Quoted in Crumb v. Wright, 97 for his vendor, because he holds under Mo. 13, 18, 19. (a) Quoting the language of Mr. Justice Catron in Galloway v, Finley, 12 Peters, 264, 295. SECT. II.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 547 The case cannot be considered as holding that the relation ex- ists beyond the duty to pay the purchase price.^ It is certain, as we have seen, that a grantee holds adversely to his grantor, and while in possession may disclaim the title of his grantor, or purchase an outstanding title and claim under that.^ But according to the doctrine of the case above presented the grantee could not by this means escape wholly the payment of the price agreed upon. The relation of landlord and tenant is also virtually created, so far as the question of estoppel is concerned, where a party enters into possession of land under a contract to purchase it ; and such a person, until ousted or disturbed in possession by one having a paramount title, will not be permitted in an action for possession by the party under whom he entered to set up a title inconsistent with his * Nor will a person who has bought the right of fishery upon rental from a town be permitted, when sued for the price, to say that the town had no right to sell, unless the defendant has been evicted by title paramount.* A purchaser of personalty too, who takes and retains the subject of sale, is ordinarily estopped to dispute the validity of the sale when the vendor seeks to enforce the same.^ ^ Qnoted in Crumb v. Wright, 97 Gudger v, Barnes, 4 Heisk. 570; Corder Mo. 18, 18, 19. V. Dolin, 4 Baxter, 238. When one en- * Ante, pp. 845, 857 ; Croxall v. tering nnder another's sale, void for want Shererd, 5 Wall. 268, 287, and cases of authority in the Tendor, may hold cited. possession and still resist payment, see * Towne v. Butterfield, 97 Mass. 105; Waggener v. Lyies, 29 Ark. 47. Lacy V. Johnson, 58 Wis. 414 ; Potts * fiastham v, Anderson, 119 Mass. V. Coleman, 67 Ala. 221 ; Tennessee R. 526 ; Watertown v. White, 18 Mass. Co. V, East Alabama Ry. Co., 75 Ala. 477. 516; Lesher t>. Sherwin, 86 111. 420; * Post, chapter 19, $2. But see Carey Tilgliman v. Little, 18 III. 239 ; Den d. v. Gunnison, 65 Iowa, 702, which may Love r. fidmonston, 1 Ired. 152 ; Persh- perhaps be doubted, though the court ing V. Canfield, 70. Mo. 140 ; Smith v. says that the estoppel does ' not necessa- Busby, 15 Mo. 887 ; Harvey v, Morris, rily * arise, which is true enough. The 63 Mo. 475 ; Winnard v. Bobbins, 3 fact that the vendor would have a right Humph. 614 ; Sayles v. Smith, 12 of action for the value of the goods is Wend. 57 ; Jackson v. Ayers, 14 Johns, not enough to prevent the estoppel 224 ; Jackson v. Walker, 7 Cowen, 687 ; upon the buyer ; that would be equally Fitzgerald v. Spain, 80 Ark. .95; San- true in the case of land. The pos- ford V, Cloud, 17 Fla. 557. Contra, in session taken and retained creates the Tennessee : Baker v. Hale, 6 Baxter, estoppel. 46; James v. Patterson, 1 Swan, 312 ; 548 ESTOPPEL IN PAIS. [CHAP. XVn. § 3. Estoppel of Bailee: Receiptor of Goods. The relation between bailor and bailee, and that of depositor and depositary of money ,^ is analogous to that of landlord and tenant Until something equivalent to title paramount has been asserted against the bailee or depositary, he will be estopped to deuy the title of his bailor to the goods intrusted to him.' In Sinclair v. Murphy it appeared that the plaintiff in the lower court and one Samuel Sinclair, a brother of the defendant, had been in partnership as sutlers in the army, and that Samuel went home and did not return ; that thereafter the plaintiff con- tinued the business in his own name, claiming to have bought out his partner. Subsequently the defendant induced the plain- tiff to allow him to take away, and put on deposit in bank, a portion of the funds, to be kept subject to the plaintiff's order. The plaintiff afterwards inquired of the defendant whether he had made the deposit as agreed, whereupon the defendant claimed the money as his own ; and this resulted in the present action. The court held that the defendant could not question the plaintiff's right to the money. The right of the bailor to the proceeds of goods sold by his bailee is of course of the same nature. Thus, in Osgood v, Nich- ols, just cited, the plaintiff sued the defendant for money had and received in respect of goods intrusted to him by the plain- tiffs, and sold by him as auctioneer. The defendant offered to show property in himself, but the evidence was excluded. In- deed, the same nile applies between the vendor and the pur- chaser of goods, in an action by the vendor to recover the price. It is laid down that no principle of law can be found which would permit the purchaser (in the absence, of course, of an as- sertion of superior right by another) to set up in defence of the claim for the price a defect of title in the vendor. It is not 1 Seneca 9. Allen, 99 N. Y. 632,539. Ill, 116, 117; Cheesman v. Exall, 6 A tax collector cannot set up the inra- Ex. 341 ; Biddle o. Bond, 34 L. J. Q. B. lidity of a statute in bar of an action for 137; Sinclair v. Murphy, li Mich. 392; money which he has collected for the Osgood v. Nichols, 6 Gray, 420 ; Lund plaintiff under such statute. Ferryman v. Seaman's Bank, 87 Barb. 129; The V. Greenville, 51 Ala. 507. Idaho, 93 U. S. 575 ; Bank of Lock- ' PuUiam v. Borlinghame, 81 Mo. hayen v, Maaon, 95 Penn. St 118. SECT, m.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 649 permitted such a party to volunteer the protection of the claims of those who do not themselves assert them.^ The same principle applies to the case of a receiptor for goqds attached by an ofiScer ; having received possession of the goods from the officer, he must, in the absence of fraud upon him or specially modifying facts,^ deliver them back when required by his contract. He will be estopped in trover or other suit for the goods to set up a title to them.' So of a wharfinger who agrees to hold goods for the plaintiff under a delivery order from a purchaser of the defendant wharfinger ; he cannot resist trover for them on the ground, e. g. that they have never been separated from bulk, and that, therefore, no property passed to the person delivering* But, as has been intimated, the estoppel of the bailee ceases with dispossession by or assertion of superior right.^ Cheesman V. Exall * is an important case upon this point. The action was trover for plate. It appeared that the plaintiff sold the plate to May and Biggenden for a valuable consideration, but for the purpose of defeating an execution. He, however, retained pos- session of the goods, and the judgment creditor assigned his judgment to May and Biggenden. They issued execution, whereupon the plaintiff deposited the plate with the defendant The latter now, in the suit to recover the goods, set up the title of May and Biggenden. The court held that he had the right to do so.^ 1 Lund V. Seaman's Bank, 87 Barb, is farther considered in the chapter on 129, Leonard, J. Equitable Estoppel, post. ' See Barron v, Cobleigh, 11 N. H. ^ Palliam v. Burlinghanie, 81 Mo. 559 ; Dewey v. Field, 4 Met. 881. Ill, 116 ; The Idaho, 98 U. S. 575 ; 8 Dezell V. Odell, 8 Hill, 215 ; Dres- Matheny v. Mason, 78 Mo. 677 ; Chees- bach V. Minnis, 45 Cal. 223 ; Dewey v. man v. Exall, 6 Ex. 841. Field, 4 Met. 881 ; Bursley v, HaniUton, « 6 Ex. 841. 15 Pick. 40 ; Staples v. Fillmore, 48 7 Chief Baion Pollock said : * My Conn. 510; Hoiii v. Cole, 51 N. H. 287; impression is that if a person pledges Dorr V, Clark, 7 Mich. 810 ; Lindner v. with another property to which he has Brock, 40 Mich. 618, 621 ; Bell v, no title and which he has no right to Shafer, 58 Wis. 228 ; Case v. Shultz, pledge, the real owner may interpose 81 Eans. 96 ; Boswald v. Hobbie, 85 and get possession of the property. In Ala. 78, 77, and cases cited. the administration of the criminal law * Woodley v, Coventry, 9 Jnr. N. s. it constantly occurs that where stolen 548 : 8. o. 2 Hnrl. & C. 164 ; Knights property has been pledged, the pawn- V, Wiffen, L. B. 5 Q. B. 660. The point broker is called upon to deliyer it ap 550 ESTOPPEL IN PAIS. [CHAP. XYlh The case of Biddle v. Bond ^ contains a clear exposition of the doctrine, and a review of the more important English cases. The case was this : The plaintiff had seized goods of one Bob- bins under a distress for the rent of a house alleged to have been ilemised by the plaintiff to Bobbins, and had delivered them to the defendant, an autioneer, to sell by auction. When the sale was about to begin, Bobbins served a notice on the defendant that the distress was void, as the relation of landloixl and tenant did not exist between the plaintiff and himself, and there was no rent in arrear. By the notice he required the de- fendant not to sell the goods, or if he sold them, to retain the proceeds for him. The defendant sold the goods, but refused to pay the proceeds over to the plaintiff, relying on the right of Bobbins. And the court sustained him.^ to the rightful owner. If the servant property from another as his bailee, or illegally pledges his master's plate, the agent, or servant, must xestore or ac- aervant cannot recover it by an action, count for that property to him from since the pawnbroker may inquire who whom he received it . . • But the is really the true owner and deliver it bailee has no better title than the bailor, to him.' He also referred to Ogle v. and consequently if a person entitled as Atkinson, 6 Taunt. 759, as deciding against the bailor to the property claims that a warehouseman receiving goods it, the bailee has no defence against him. from a consignee who has had actual Wilson &. Anderton, I Bam. & Ad. 450. possession of them, to be kept for his Such was the position of the defendant use, may nevertheless refuse to redeliver in the present case. If Bobbins had them if they are the property of another, chosen to sue him in trover, or waiving Mr. Baron Martin thought, however, that the tort had sued for money had and re- Mr. Justice Heath had expressed the ceived, the defendant would have had doctrine too broadly in the case just no defence. He was therefore com- cited in saying that the rule against polled to yield to Bobbins's claim ; and setting up t^e jus tertii was limited to it would certainly be a hardship on him the action of ejectment. ' I do not con- if without any fault of his own the law cur,' said he, ' in thinking that there is leffc him without any defence againat no case except that of land in which the the plaintiff for so yielding. We do not, jus tertii may not arise. There are nu- however, think that such is the law. merous cases in connection with wharves Several cases were cited on the argn- and docks in which, if the party in- ment at the bar, and more might have trusted with the possession of property been cited, such as Stonard v. Dunkin, were not estopped from denying the title 2 Camp. 344, Gosling v. Bimie, 7 Bing. of the person from whom he received it, 339, and Hawes v. Watson, 2 Bam. & it would be difficult to transact commer- C. 540, in which a bailee who by at- cial business.' toming to a purchaser of the gooda ^ 34 Law J. Q. B. 187. has in effect represented to him that ' Blackburn, J. in delivering judg- the property has passed to him, though ment, said : ' We do not question the such was not the fact, and has thereby general mle that one who has received induced him to alter his position and SECT, ni.] ESTOPPEL BY CONTRACT : LEGAL EFFECT. 551 It is, however, laid down in a case distinguishing Biddle v. Bond, that if a party accept a bailment with full knowledge, at pay the price to his vendor, has b^en then it is, as it were, an eviction of the held estopped from denying the prop- horse out of the defendant's possession, erty of the person to whom he has which discharges the promise, as well thus attorned, by setting up a title in a as an eviction of the lessee for years dis- third person inconsistent with the repre- charges all rents, bonds, and covenants sentation on which he had induced the in any sort depending upon the inter- plaintiif to act. We in no way ques- est." In Wilson v. Andertou, 1 Baru. tion that those cases were rightly & Ad. 450, Littledale, J. without re- decided. But in all these cases the ferring to Shelbury v. Scotsford, but estoppel proceeded upon the represen- evidently having it in mind, states the tion, which was analogous to a war- law to the same effect. And acc-ordingly ranty of title for good consideration to in Hardman v. Willcock, 9 Bing. 382, the purchaser. Now, in the ordinary in Cheesman r. Exall, 6 Ex. 341, and olaas of bailments, such as the present, in Sheridan v. The New Quay Company, the representation is by the bailor to 4 C. B. N. 8. 618, a bailee was permitted the bailee that he may safely accept under circumstances similar to the pres- the bailment ; and so far as any weight ent to set up the jus tertiL It is true is to be given to the representation, it that in the first two of these cases the makes against the .estoppel. This is plaintiffs had obtained the goodd by a pointed out by Parke, B. in Cheesman fraud upon the person whose title was V. Exall, 6 Ex. 841 [supra, p. 649], in set up, whilst in the present case there the case of a pledge, and is indicated as is nothing in the evidence to show that one of the grounds on which the judg- the plaintiff though a wrongdoer did ment of the Court of Common Pleas not honestly believe that he had the proceeded in Sheridan v. The New right to distrain. But we do not think Quay Company, 4 C. B. M. 8. 618, that this circumstance alters the law on which was the case of a carrier. The the subject. The position of the bailee position of an ordinary bailee, where is precisely the same whether his bailor there has been no special contract or was honestly mistaken as to the rights misrepresentation on his part, is very of the third person, or fraudtlently act- analogous to that of a tenant who, having ing in derogation of them. We think accepted the possession from another, is that the true ground on which a bailee estopped from denying his landlord's may set up the jus tertii is that indi- title, but whose estoppel ceases when cated in Shelbury v. Scotsford ; viz. he is evicted by title paramount. This that the estoppel ceases when the bail- was decided as early as the 44 Eliz., in ment on whicn it is founded is deter- Shelbury v. Scotsford, 1 Yelv. 22. mined by what is equivalent to an evic- There ^e plaintiff sued in assumpsit tion by title paramount. It is not against the bailee of a horse for the enough that the bailee has become breach of his contract to redeliver it. aware of the title of a third person. The defendant pleaded that J S, the We agree in what is said in Betteley v. true owner of the horse, took it from Reed, 4 Q. B. 611, that ** to allow a de- the defendant. After verdict for the positary of goods or money who has defendant the plaintiff moved in arrest acknowledged the title of one person of judgment ; but ** by Feniier and Yel- to set up the title of another who makes ▼erton, contra, for the matter alleged no claim or has abandoned all claim, by the defendant does in law discharge would enable the depositary to keep for the promise, by reason of the former himself that to which he does not pre- property of the horse in J 8 ; and tend to have any title in himself what* 552 ESTOPPEL IN PAIS. [CHAP. XYn. the time, of the right of another to the property, he will be pre- cluded from setting up that right in bar of the bailor's claim.^ In the case just cited Mr. Justice Lush said that in Biddle v. Bond notice of the adverse claim was given to the auctioneer when the sale was just about taking place, and the auctioneer did not elect in favor of one of the claimants, but merely sold the goods under the authority which had been given to him by his bailor. § 4. Employees : Assignees and Licensees : Patents. A similar rule of law applies to employees and contracting parties generally ; they cannot accept the benefits of the con- tract and yet, when called upon to perform their duties under it, repudiate it as made without right, or as otherwise wanting in force,^ if it is not actually in violation of law,* or wholly void.* The assignee or the licensee of any right, accepted and acted under, may accordingly be estopped to deny the authority from which the right proceeds.^ Thus, an assignee or a licensee of a patent, apparently valid and in force,^ who has acted under it soeyer." Nor is it enongli that an York v. Sonneborn, 118 N. Y. 423; adverse claim is made upon him so that Warren ton v. Arrington, 101 N. C. 109; he may be entitled to relief under an Loveman v. Taylor, 85 Tenn. 2. The interpleader. We assent to what is said mle stated is, in some cases, no more by PoUoct, C. B. in Thome v. Tilbury, than the old rule of equity, that the 8 Hnrl. & N. 534, 537, that a bailee superior party in a fiduciary or a coiifi- can set up the title of another only " if dentiai relation cannot acquire rights he depends upon the right and title, and against the beneficiary by taking advan- by the authority of that person." Thus tage of this position. Seel Bigelow, restricted we think the doctrine is sup- Law of Fraad, 261. See, further, chapter ported both by principle and authority, 21, on Election, to which doctrine the and will not be found in practice to pro- rule may also be referred, in some cases, duce any inconyenient consequences.' > See New York v, Sonneborn, 1 Ex parte Davies, 19 Ch. D. 86. supra. See Kingsmau v. Kingsman, 6 Q. B. D. * Dunham v. Reilly, infra. 1^22. 6 Commonwealth v.Rourke, 141 Mass. a See Briggs v, Hodgdon, 78 Maine. 821, license to seU intoxicatiriR liciuora ; 614, attorney; Gayle v. Johnson, 80 New York v. Sonneborn, 118 N. Y. Ala. 888 ; Speer v, Matthews, 78 Ga. 423 ; Dunham v, ReiUy. 110 N. Y. 757, attorney ; Burgess t;. Badger, 124 866. 111. 288, 306, 807, partner ; Wobiim w. • Qn»re in regard to a case in which Henshaw, 101 Mas& 108 ; McClure v. the letters-patent disclose their inva- Commonwealth, 80 Penn. St 167; Probst- lidity? Comp. the cases in regard to field v. Czizek, 87 Minn. 420 ; New recitals, ante, pp. 860-363. SECT. lY.] ESTOPPEL BT CONTRACT : LEOAL EFFECT. 558 and received profits from the sale of the patented article, will be estopped to deny the validity of the patent in an action by the patentee to recover royalties or to obtain an account.^ In the case first cited the court says that the defendants having, under an agreement for the manufacture and sale of the patented arti- cle, actually received profits from sales of the patented machine, which profits the defendants did not show to have been in any way liable to be afiected by the invalidity of the patent, the matter of the validity of the patent was immaterial. But the court proceeded to say that the defendants were estopped from alleging that invalidity. They had made and sold the machines under the complainant's title, and for his account; and they could no more be allowed to deny that title and retain the profits to their own use than an agent who has collected a debt for. his principal could insist on keeping the money upon an allega- tion that the debt was not justly due. The invalidity of the patent did not render the sales of the machine illegal so as to taint with illegality the obligation of the defendants to account. Even when money had been received, either by an agent or by a joint owner, by force of a contract which was illegal, the agent or joint owner could not protect himself from accounting for what was so received by setting up the illegality of the trans- action in which it was paid to him.^ But a licensee of a void patent may of course set up a want of consideration in an action on the notes given for the use of the patent.^ 1 Kinsman v. Parkhnret, 18 How. gality of the trade, but it was held to 289 ; Marston v, Swett, 82 N. Y. 526, be no defence. Sharp v. Taylor, 2 638 ; Marsh v. Harris Manuf. Co., 63 Phil. Ch. 801. So in Tenant v. Elliot, Wis. 276, 288 ; Lawes v. Purser, 6 El. 1 Bos. & P. 8, the defendant, an in- k B. 980 ; Noton v. Brooks, 7 Hurl. & sarance broker, having effected an ille- N. 499 ; Crossley v. Dixon. 10 H. L. gal insurance for the plaintiflT and Cas. 293 ; Forncrook Manuf. Co. v. received the amount of a loss, endeav- Bamum Wire Works, 54 Mioh. 552 ; ored to defend against the claim of his Eureka Co. v. Bailey. 11 Wall. 488; principal by showing the illegality of Jones V. Burnham, 67 Maine, 93. See the insurance, but the plaintiff recov- Jackson v. Allen, 120 Ma.ss. 64, 79. ered.* See also McBlair v. Gibbes, 17 « *Thus,* said the court, 'when a How. 232, 236 ; McMicken v. Perin, 18 vessel engaged in an illegal trade car- How. 607. ried freight which came into the hands ' Saxton v. Dodge, 57 Barb. 84. of one of the part-owners, and on a bill The patentee is not estopped, it filed by the other part-owner for an ac- seems, to show the invalidity of his count, the defendant relied on the ille- pati^'nt against an assignee thereof who 554 ESTOPPEL IN PAIS. [CHAP. XVII. § 5. Possession taken wnder Will or Intestacy, We have now to call attention to some cases of estoppel akin to those already considered, in which, however, there is no con- tract, or in which there may be no contract, giving to the party estopped the right of possession. Still, it will be ibund that the view taken of the situation is that the taking possession is in accordance with a right which would not have been granted ex- cept upon the understanding that the possessor should not dis- pute the title of him under whom the possession was derived. The cases referred to are successions post mortem, that is, estates devolving by testacy or intestacy upon the persons taking possession. It is also a general principle of law that an executor or ad- ministrator of property, into possession of which he has been let under the will or letters of administration is, like a tenant, estopped while he continues in possession from disputing the title of his testator or intestate.^ And this is true even of the widow of such representative of the estate when claiming under a title of her husband.^ The property must be surrendered and administration abandoned before the estoppel is removed. In a recent case ^ the question was raised whether an admin- istrator who finds property among the assets of the estate, takes possession of it as the property of the estate, and sells it, having no claim to it himself, and no other pei*son making claim to it, can relieve himself from liability to the estate by setting up a claim adverse to the estate. It was held that he could not The doctrine upon which the decision was based was that a tnistee who receives property as assets of the trust cannot resist his liability on the ground of an adverse title which has never been asserted against him. The court remarked that it might be that a trustee would not be estopped from setting up his own title by the acceptance of a trust in ignorance of his title, or has sued him for infringing it. See ^ Smith v. Sutton, 74 Ga. 528. Smith V. Cropper, 10 App. Cas. 249 ; ^ Benjamin v. Gill, 46 Ga. 110 ; 26 Oh. D. 700, so holding of a suit by Fitts v. Cook, 5 Gush. 596, 601 ; 1 Jar- an assignee of the patentee's trustee in man, WiUs, 18. bankruptcy. * Irby v. EitcheU, 42 Ala. 488. SECT, v.] ESTOPPEL BT CONTEACT : LEGAL EFFECT. 665 through mistake, when he had done no act which it would be prejudicial to the beueficiariea for him to gainsay.^ And so per- haps a trustee, notified of an adverse claim, would not be re- quired to surrender the assets until that claim was settled. But these principles did not touch the point in the present case. The administrator did not pretend to have any right to the cotton, or that anybody else was cMming it. The case was an open and undisguised attempt by a trustee to avail himself of his trust to make a personal profit out of an implied defect in the title to the property which had come to his hands. It was to the credit of the law, the court strongly observed, that it did not tolerate such a thing.^ In the same way a devisee for life wiU be estopped after tak- ing possession under the will from saying that the testator had no sufficient estate to create such interest. It is laid down to be contrary to law for one who has obtained possession under and in furtherance of the title of a devisor to say that such title is defective or insufficient.' In the case cited a devisee for life attempted to say that the testator was only tenant by the cur- tesy, and that the former had acquired a title to the premises by twenty years* adverse possession ; but the court refused to hear the claim.* ^ Mc Williams o. Ramsay, 23 Ala. he was estopped to deny that he held 813. the fund as administrator. Wilson 2 In the case'ofMc Williams v. Bam- v, Wilson, 17 Ohio St 150. Conceni- say, above cited, the court held that ing settlement of accounts of admin- where an administrator returns chattels istrators and guardians, see also Mc- in his inventory as belonging to the Donald v. McDonald, 50 Ala. 26 ; estate, and hires them out, taking notes Ashley v. Martin, ib. 537 ; Foust v. payable to himself as administrator, he Chamblee, 51 Ala. 75 ; Grady v. Porter, is not estopped thereby to amend his 53 Cal. 680. The fact that interested inventory and leave them out, if they parties have witnessed to the correctness do not in fact belong to the estate. But of such accounts and requested the Pro- where an administrator, who was also bate Court to pass them will not in guardian of the intestate's heirs, charged Alabama preclude them from suing in himself as administrator with a fund, equity to correct errors therein. Monin and failed to credit himself with its v, Beroujon, ^1 Ala. 196. See, however, payment to him as guardian, and in an Bell v. Craig, 52 Ala. 215. attempted settlement of his account as ' Board v. Board, L. B. 9 Q. B. guardian refrained from chai^g him- 48. self therein with the fund, it was held ^ Anstee v, Nelms, 1 Hurl. & N. 282» in an action on his bond as adminis- was cited by the court tntor for the recovery of the fund that 556 ESTOPPEL IN PAIS. [CHAP. XYIH. B. ESTOPPEL BY CONDUCT. CHAPTER XVIIL ESTOPPEL BT MISREPRESENTATION, OR EQUITABLE ESTOPPEL. § 1. Nature of Estoppel arising from Misrepresentatiotu In the classes of cases arising under this head the estoppel to deny the fact does not turn in any way upon any contract to treat the fact as settled, but upon conduct which it would be unrighteous and unjust to allow the author of it to repudiate. The first class of cases,- and the chief class, is where the estoppel arises from misrepresentation; to that subject we now call attention. The typical phase of estoppel by conduct is produced by mis- representation; and by misrepresentation is meant a false impression of some fact or set of facts, created upon the mind of one person by another, by language, or by language and con- duct together, or by conduct alone equivalent to language, where there appears to be no intention to warrant the same.^ Misrep- resentation, therefore, does not include (1) impressions created in regard to one's intention tp insist upon the performance of some undertaking or other duty ; nor does it include (2) impres- sions created in regard to facts by mere negligence, when there has been no communication by the negligent person to the one receiving the impression. These two cases are entirely distinct in law from cases of misrepresentation, and will be separately considered. In its most common aspect this estoppel is founded upon deceit, and has its justification in the duty of the courts to pre* 1 Warranty would make a different case from that made by representation. SECT. I.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 667 vent the accomplishment of fraud.^ The estoppel consists in holding for truth a representation acted upon when the person who made it or his privies seek to deny its truth and to deprive the party who has acted upon it of the benefit obtained.^ The origin of the estoppel is probably to be found in the doctrine of equity ^ that if a representation be made to another who deals upon the faith of it, the former must make the representation good if he knew or was bound to know it to be false.* Lord Eldon in the case just cited speaks of this as ' a very old head of equity.' * But the principle had been fully adopted at law as ground for an action of deceit several years before this remark was made,® and though still called * equitable estoppel * the estoppel is as fully available at law as in equity.'' In order to justify the interposition of equity in the case men- tioned it is necessary to establish, not only the fact of misrep- resentation or concealment, but also that it has been in a matter of substance or of importance to the interests of the other party, and that it has actually misled him. If the misrepresentation was of a trifling or immaterial thing, or if the party alleging it did not in fact trust in it or was not misled by it, or if it was vague or inconclusive in its nature, or if it was upon a matter of opinion or fact equally open to the knowledge of both parties, in regard to which neither could be presumed to trust the other ; in these 'and the like cases equity will not grant relief.® We 1 Jones V, McFhiUips, 82 Ala. 102, mle in Massachusetts, see Newell v, 115, 116, and cases cited; Adler v. Pin, Holton, 10 Gray, 849 ; ante, p. 480, note. 80 Ala. 851, 854 ; Shipley v. Fox, 69 And see more at length Bigelow's Bills Md. 672, 579. and Notes, 174, 175. * Quoted in Lamb v. Trowbridge, 71 • See Brewer v. Boston & W. R. Co., Iowa, 396, 400. In an action against 5 Met. 478, 483. another than the person who made the ^ Evans v. Bicknell, 6 Ves. 174, 182 ; false representation that person could Slim v, Croucher, 1 De G. F. & J. 518 ; probably give evidence impeaching his Lee v. Monroe, 7 Cranch, 866. representation if there were no connec- ^ Eeate v. Phillips, 18 Ch. D. 560, tion between the defendant and the 577 ; infra, p. 558, note 3. witness. Jordaine v. Leshbrooke, 7 * Pasley v. Freeman, 3 T. R. 51. T. R. 601 (overruling Walton v. Shelly, ^ Drexel ». Bemey, 122 U. S. 241 ; 1 T. R. 296) ; Townsend v. Bush, 1 Barnard v. German Seminary, 49 Mich. Conn. 260 ; Williams v. Walbridge, 8 444 ; Copper Mining Co. t;. Ormsby, 47 Wend. 415 ; Haines v. Dennett, 11 Yt 709. N. H. 180. Contra, Freon ». Brown, ^ i Story, Eq. Jur. § 191. In Drexel 14 Ohio, 482. Concerning the special v, Bemey, supra, it is held that, to jos- 668 ESTOPPEL IN PATS. [CHAP. XVIH. shall see in the course of the present chapter that the legal doctrine of estoppel by conduct is founded upon similar con- siderations. We now call attention to a few of the leading cases in which the general nature of this particular phase of estoppel by conduct is defined ; and we shall then pass on to a detailed examination of the subject This branch of estoppel received in England its distinctive enunciation and form with the well-known case of Pickard v. Sears ; ^ a case which bears much the same relation to this part of our subject as that of the Duchess of Kingston does to estop- pel by record. The doctrine had indeed been foreshadowed and applied in a few of the earlier cases ;^ but Pickard v. Sears was the case in which the doctrine of the Court of Chancery wa.j finally adopted.* That case was an action of trover for machinery, to which the defendant pleaded not guilty, and that the plaintiff was not possessed, etc. Issue was taken upon the pleas. On the trial at nisi prius before Lord Denman it appeared that the plaintiff was the legal owner of the machinery under a mortgage from one Metcalf, and that the property had been levied upon, subsequently to the execution of the mortgage, as Metcalf 's, and sold by the sheriff to the defendants. Notice of this mort- gage was given by the plaintiffs to the defendants after the sale to them of the property. It further appeared that after the tify resort to equity, in respect of this ^ 6 Ad. & E. 469. 'equitable estoppel,* it is necessary ' Heane v. Rogers, 9 Bam. & C. 586 ; that there should he some ground of Graves v. Key, 8 Bam. & Ad. 818, note ; equity ajwrt from the estoppel itself ; in Mildway v. Smith, 2 Saund. 848. other words, this estoppel in itself is ' 'The common-law doctrine of es- pnrely legal. There cannot be any es- toppel was, as I have said, a device toppel according to some cases against which the common-law courts resorted showing an act made void by statute, to at a very early period to strengthen Tribble v. Anderson, 63 6a. 41 ; Rose- and lengthen their ami, and not ventnr- brough V. Ansley, 85 Ohio St. 107 ; ing to exercise an equitable jurisdiction Bank of Cadiz. v. Slemmons, 84 Ohio over the siibject before them, they did St. 142. See McEnight v. Pittsburgh, convert their own special pleading tac- 91 Penn. St. 278. Contra now in New tics into an instrament by which they York, but not perhaps formerly. Payne could attain an end which the Court of V. Buraham, 62 N. Y. 69 ; Mason v. Chancery, without any foreign assist- Anthony, 8 Keyes, 609. Comp. Wilson ance, did at all times, and I hope will V, Western Land Co., 77 N. Car. 445, at all times, put into force in order to where it is held that a deed will work do justice.' Bacon, V. C. in Keate v, estoppel though executed in violation of Phillips, 18 Ch. D. 560, 577. an iiyunction. See post, pp. 564, 666. SECT. I.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 659 seizure the plaintiff bad repeatedly conversed about tbe same witb tbe witness (who was the attorney of Hill^ the plaintiff in the execution), sometimes in Metcalf s presence, and bad never made any claim to tbe goods, though he stated that Metcalf was bis debtor for about £500, and frequently consulted witb the witness upon the best way of disposing of the property ; that after a negotiation for sale bad been made tbe witness bad ad* vised the plaintiff and Metcalf to try to raise £1,000 to pay off the execution creditor, the remainder to go to carry on the business ; that the plaintiff had named a party from whom it was attempted, but without success, to obtain the money ; and that the witness bad told the plaintiff that the defendants were about to purchase tbe property. It was not disputed that the mortgage bad been made in good faith, or that the defendants bad purchased bona fide and without notice of the mortgage. A plea of leave and license having been refused, the defend- ants suggested that it should be left to the jury to say whether the plaintiff had concurred in the sale ; but his lordship was of opinion that there was no evidence of such concurrence, and directed tbe jury to find for the plaintiff if they thought that the mortgage had been made bona fide. A verdict having been given for the plaintiff, a rule for a new trial was now argued before Lord Denman, C. J. and Williams and Coleridge, JJ. Counsel for the plaintiff ai-gued that the articles were in. Metcalf *s possession according to tbe intention of the mortgage deed, and that there was no badge of fraud. The property was in the plaintiff, and had never passed to the defendants. This was the only question open on the pleadings ; no doubt being raised about tbe conversion, which alone could be disputed under the plea of not guilty. The jury should have been asked whether the plaintiff authorized tbe sale. Counsel for the defendants urged that the sale took place with the knowledge of the plain- tiff, and virtually by bis authority. He bad full power to au- thorize a sale either generally or to a particular party ; and bis acts went far enough to give the authority. He could not then dispute that the sale was valid, and transferred the possession so as to support the second plea. His conduct induced the attorney of the execution creditor to change tbe situation of the parties ; 560 ESTOPPEL IN PAIS. [CHAP. XVni. and the case resembled that of admissions made upon which the party to whom they were made acts so as to change his situation. In such a case the party making the admission was estopped from disputing the same.^ The decision was given in favor of the defendants.^ And the rule was stated to be, that where one by his words or conduct wilfully • causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is con- cluded from averring against the latter a different state of things as existing at the saii^e time. In accordance with this case it is now a well-established prin- ciple that where the true owner of property, for however short a time, holds out another, or allows another to appear^ as the owner of or as having full power of disposition over the prop- erty, the same being in the latter's actual possession,^ and inno- cent third parties are thus led into dealing with such apparent 1 Referring to Graves v. Key, 8 Barn, eluded from averriDg against the latter ft Ad. 818, note ; Heane v. Rogers, 9 a different state of things as existing at Bam. & C. 586. the same time ; and the plaintiff in this ^ Lord Denman, C. J. in delivering case might have parted with his interest judgment, said : ' Much donbt has been in the property by verbal gift or sale entertained whether these acts of the without any of those formalities that plaintiff, however culpable and injurious throw technical obstacles in the way of to the defendant and however much legal evidence. And we think his con- they might be evidence of the goods duct in standing by and giving a kind not being his in the sense that any of sanction to the proceedings under persons, and amongst others the de- the execution was a fact of such a na- fendants, would be naturally induced ture that the opinion of the jury ought thereby to believe that they were not, in conformity to Heane v. Rogers and furnished any real proof that they were Graves v. Key to have been taken not bis. His title having been once es- whether he had not in point of fact tablished, the property could only be ceased to be the owner, (a) That opin- divested by gift or sale ; of which no ion, in the affirmative, would have de- specific act was even surmised. But cided the second issue iu the defend- the rule of law is clear that where one ant's favor.' by his words or conduct wilfuUy causes ' Concerning the use of this term, another to believe the existence of a cer- see post, p. 682, note, tain state of things, and induces him to * Howland ». Woodruff, 60 N. Y. 78, act on that belief so as to alter his own two judges dissenting. See Graybeal v. previous position, the former is con- Davis, 96 N. Car. 608. (a) This does not mean agency, though the case was argued on both sides (see supra, p. 659) as if it were a question of that sort ; at all events, the estoppel is not now supposed to rest on agency. It rests upon fraud, or negligence involv- ing a breach of duty towards him who daima the estoppeL See post, § 3. SECT. I.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 561 owner, they will be protected Or where others are innocently induced to acquire rights in derogation of the secret or undis- closed claims of those who cause such action, the rights so ac- quired are secure whether contested at law or in equity. Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are de- rived from conduct of the real owner which precludes him from disputing against them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.^ This rule applies to married women doing business for them- selves under the statutes ; ^ also to heirs who assent to and en- courage the sale of land by an executor who has no authority under the will to make such a sale.' It applies to a cestui que trust (not under disability) who allows and encourages the trustee to appear as absolute owner of the trust property, and thereby causes an innocent person to act upon that belief and to change his position ; the rights of the latter will have priority over those of the cestui que trust.* It applies equally to the con- 1 Anderson v, Aimstead, 69 111. 452; Ala. 10 ; Powers v. Harris, 68 Ala. 410; Stewart r. Munford, 91 III. 68; May erv. Rum ball r. Metropolitan Bank, 2 Q. Erhardt, 88 III. 452 ; Nichols v. Pool, B. D. 194 ; McNeil v. Tenth National 89 111. 491 ; Lewis v. Lanphere, 79 111. Bank, 46 N. Y. 325 ; Winton v. Hart, 187 ; Kinnear v. Mackey, 85 111. 96 ; 89 Conn. 16 ; Bedd v. Muscogee R. Gridley v. Hopkins, 84 111. 528 ; El- Co., 48 6a. 1^2 ; Moore r. Metropolitan dridge r. VTalker, 80 111. 270 ; Colwell Bank, 65 N. Y. 41 ; McStea v. Mat- V. Brower, 75 111. 616 ; Carter v. Fately, thews, 60 N. Y. 166 ; Pickering v, 67 Ind. 427 ; Bobhitt v. Shryer, 70 Ind. Busk, 15 East, 88 ; Gregg v. Wells, 10 613 ; Williams v. Niagara Ins. Co., 60 Ad. & E. 90 ; Saltus v. Everett, 20 Iowa, 661 ; Angell v, Johnson, 61 Iowa, Wend. 267, 284 ; Mowrey v. Walsh, 8 626 ; Foley v. Cooper, 43 Iowa, 876 ; Cow. 238 ; Root v. French, 13 Wend. Morris v. Shannon, 12 Bush, 89 ; Mon- 670 ; Horn v. Cole, 51 N. H. 287 ; tague V. Weil, 80 La. An. 60 ; Bevens Jowers v, Phelps, 83 Ark. 465 ; Grace V. Weill, ib. 186 ; Lippmins v. McCra- v, McKissack, 49 Ala. 168 ; Hardigree nie, ib. 1261 ; Chapman v. Plngree, 67 v. Mitchum, 51 Ala. 151 ; Rabitte v, Maine, 198; Sebright v. Moore, 38 Orr, 83 Ala. 186. Mich. 92 ; Ford v. Loomia, ib. 121 ; ^ Bodine v, Killeen, 53 N. Y. 93. Hawkins v, Methodist Church, 23 Minn. » Favill v. Roberts, 50 N. Y. 222. 256 ; Pence v. Arbuckle, 22 Minn. 417; * Regina v. Shropshire Union Co., Mayo V. Leggett, 96 N. Car. 237 ; Red- L. R. 8 Q. B. 420, Ex. Ch. See Wal- man v. Graham, 80 N. Car. 281 ; Sim- dron v, Sloper, 1 Drew. 193 ; Rice v, mons r. Camp, 71 Ga. 64 ; Kennedy Rice, 2 Drew. 78. If the maker of a V, Redwine, 69 Ga. 827 ; Jones v. Haw- trust deed permit the trustee, with kins, 60 Ga. 62 ; Allen v. Maury, 67 knowledge, to make sale of the prop- 86 562 ESTOPPEL IN PAIS. [CHAP. XYin. verse case of a trustee selling his own land as that of his cestui que trust, or land in which he has an interest as that of his cestui que trust, absolutely.^ But the rule, it is hardly necessary to say, has no application to one in possession of property who re* fuses to disclose the nature of his claim thereto ; ^ for possession itself is notice of some kind of claim, and the purchaser buys subject to that notice* It should be observed that while the rule in Fickard v. Sears finds most frequent expression in transfers of property, it is not confined to such cases ; it includes all cases of false representa- tion and fraudulent silence, whatever the nature of the trans- action.^ Thus, it is laid down of a person who permits himself to appear as one of several principal makers to a promissory note, thereby inducing another to sign the same instrument as surety, that he will be estopped towards this latter party to allege that his own real relation to the paper was that of surety;^ though the case would be different if there was no 'inducing' to the mistake.^ So, again, if a man purchase bona fide and for value an unnegotiable chose in action from one upon whom the owner has by assignment or otherwise con- ferred the apparently absolute ownership, he obtains a valid title against the real owner, supposing the act of purchase to have been induced by such act of the owner.^ So one who erty for the creditor usury included, he t». United States, 16 "Wall. 1, same ; will be estopped from impeaching the State v. Young, 23 Minn. 549 ; Union sale for usury. Tyler v. Mass. Ins. Ck)., Savings Assoc, v. Kehlor, 7 Mo. App. 108 111. 58 ; Perkins v. Conant, 29 111. 158 ; Farley v. Pettes, 5 Mo. App. 262 ; 18i. Miles V. Lefi, 60 Iowa, 168 ; CasweU v. 1 Smith V. Hutchinson, 108 111. 662. Fuller, 77 Maine, 105 ; Larkin v. Mead, It applies to the name which one adopts 77 Ala. 485 ; Philadelphia v. Matchett, in executing an instrument, as e. g. a 116 Penn. St. 103. deed of laud. Davis v, Callahan, 78 * Bobbitt v. Shryer, 70 Ind. 613; Maine, 313 ; Shelton v, Aultman, comp. Melms v, Werdehoff, 14 Wis. 18. See 82 Ala. 815. Keith v, Goodwin, 31 Vt. 268. 2 Cininingham v. Milner, 56 Ala. 622. « See McGee v, Prouty, 9 Met. 547. « Hathaway v. Noble, 56 N. H. 608; It is not clear whether the plaintiff in 1 Bigelow, Law of Fraud, 890-393. this case was induced at all to sign the * See Rabitte v. Orr, 88 Ala. 185 ; note by the (blank) signature of the de- Colquitt V. Smith, 76 Ga. 709 ; Hen- fendant ; apparently he was not. derson v. Hartman, 65 Miss. 467, estop- ^ Moore v. Metropolitan Bank, 65 pel to allege usury ; Beals v. Lewis, 43 N. Y. 41 ; Hentz v. Miller. 94 N. Y. Ohio St. 220, usury ; Humphreys o. 64 ; Combes v. Chandler, 33 Ohio St Finch, 97 N. Car. 803, suretyship ; Dair 178. SECT. I.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 668 dates a negotiable instrument upon a week day cannot after it has passed into tlie hands of an innocent holder for value say that it was executed on Sunday.^ Again, uieuibership of a corporation may be effected by es- toppel. It is clear that one may become a stockholder in a corporation as well by acts and conduct affecting creditors and subscribers to tlie stock as by direct subscription.^ Thus, a man may be estopped to deny his membership by causing or allowing stock in a corporation to be registered in his name, or otherwise holding himself out as a member of the corporation and so inducing others to join on that footing.^ So it is held that one who, though not a subscriber, has paid a call in such a case is estopped in an action of debt for calls to deny his mem- bership.^ It has been held too that, when a party represents himself to a corporation as owner of shares, and demands to be registered as such, in consequence of scrip certificates pur- chased by him and sent in to the company, for which he has had receipts and a notice that the scrip will be exchanged for sealed certificates on demand, he will be estopped to deny his liability for calls, though the provisions of the act necessary to make him proprietor have not been complied with by the reg- istry of his name or of the entry of transfer made.* Indeed, it has been broadly declared that the acceptance of stock from a corporation in one's own name as owner on the face pf the transaction, and then voting thereon, will estop the party from saying that he received the stock as collateral security from the corporation and thus claiming the benefit of a statute in favor of persons holding such stock as collateral.® But these two 1 Knox V. Clifford, 88 Wis. 651. U. S. 20 ; Fislier v. Seligman, 76 Mo. See Stete Bank v. Thompson, 42 N. H. 18 ; e. c. 7 Mo. App. 388, 898 ; Erskine 869 ; Nelson v. Cowing, 20 Wend. 886; v. Loewenstejn, 82 Mo. 801 ; In re Re- Triehcr v. Commercial Bank, 81 Ark. ciprocity Bank, 22 N. Y. 17. 128. * Railway Co. v, Graham, 2 Eng. * Merely subscribing one's name to Ry. Cas. 870 ; Griswold v. Selignmn, the subscription book does not estop 72 Mo. 110 ; Boggs p. Olcott, 40 111. one to deny that one is a subscriber. 808. Lathrop r. Kneeland, 46 Barb. 432. * Railway Co. ». Daniel, 2 Eng. • See Pullman v. Upton, 96 U. 8. Ry. Cas. 728 ; Griswold v. Seligman, 828 ; National Bank w. Case, 99 U. S. supra. 628, 681 ; Burgess v. Seligman, 107 ^ Griswold v. Seligman, 72 Mo. 110. 664 ESTOPPEL IN PAIS. [CHAP. XVIII. propositions^ while true where the rights of subsequent creditors and purchasers of the stock are concerned, have been clearly shown to be unfounded when applied to cases in which only the corporation and existing stockholders and creditors are con- cerned, — that is, where nobody has been misled or influenced to his hurt thereby.^ Further, there must have been a lawful creation of stock in the outset, to make one a stockholder. If the issue of the shares was illegal, if no sufficient steps were taken to author- ize the creation of the capital stock, then though a person has acted and been treated as a stockholder in respect of shares which the company had thus no power to issue, and which therefore cannot legally exist, the person taking them cannot, by estoppel or otherwise, become a member in respect to them.* The doctrine has well been referred to estoppel by conduct that where one intentionally or negligently holds oneself out or permits another to hold one out as a partner of a firm, contrary to the fact, or whei'e late partners continue to do business in the firm name after dissolution,^ or where a firm after having sold out their business to another suffer the purchaser to continue the business in the firm name, without anything to indicate the change, and the representation has been innocently acted upon by others without knowledge or notice of the truth of the matter, such party or parties will be held liable to such persons,* ^ Burgess v. Seligman, 107 U. S. vey, 78 Ind. 26 ; Strecker v. Conn, 90 20. See Bank of Hindostan v. Alison, Ind. 469 ; Pepper v. Zahnsinger, 94 L. R. 6 C. P. 54 ; post, § 8. Ind. 88 ; Over v. Schiffling, 102 Ind. « American Tube Works v. Boston 191, 196 ; Lochte v. GiM, 1 McGloln Machine Co., 139 Mass. 6, 11, C. Allen, (La.), 52; Bmgman v. McQuire, 32 J. Further upon this subject see Thomp- Ark. 733; Campbell v. Hastings, 29 son, Stockholders, §§ 150 et seq. Ark. 512. See also Dyerr. Sutherland, * Stimson v, Whitney, 130 Mass. 75 111. 583, concerning the effect of sn- 591. ing in a joint name as of partners. In ^ Among the many cases see Miles v. Mitchell v. Ostrom, 2 Hill, 520, it was Furber, L. R. 8 Q. B. 77 ; Rabitte v, held that one who had signed a partner* Orr, 83 Ala. 185 ; Adams v, Morrison, ship name as a * late firm * ,was not es- 113 N. Y. 152; Newell r. Nixon, 4 topped to deny his joint liability on the Wall. 572 ; Partridge v. Kingman, 130 note. Nor is it enough to raise the Mass. 475 ; Nichols v. James, ib. 589 ; estoppel that goods were bought by a Rice V. Barrett, 116 Mass. 312 ; Vib- party in a firm name and that bills werp bard t;. Roderick, 51 Barb. 616 ; Conk- made omt and the goods shipped accord- lin V. Barton, 48 Barb. 435 ; Sherrod v. ingly. Partridge v, Kingman, supra. Langdon, 21 Iowa, 518 ; Uhl v. Har- See also Shirreff v. Wilks, 1 East, 48 SECT. I.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 565 and to such only.^ So too where one man permits another in his presence to make a contract for him,^ or where one man holds out another as possessed of authority to act for him in a par- ticular transaction, or in a class of transactions of which the par- ticular transaction is one, he will be estopped as against one who has been innocently induced to negotiate with the supposed agent as an agent from disputing the authority* of such person to act for him.' This rule applies, of course, to all persons held out as authorized to act for the one against whom the estoppel is alleged, as well as to those held out strictly as agents.^ And one may equally be estopped by misleading a person to believe that another is a principal, and so pi'evented from asserting that the latter was one's agent.^ In this connection too may be noticed the large class of cases of the fraudulent filling of blanks in mercantile paper and other instruments by persons intrusted with the same;® which, however, as has elsewhere been remarked, are not true cases of estoppel, but cases of agency,*^ or purchaser for value without notice.® The question Hawks V. MuDger, 2 Hill, 200. A man Venn. St. 214; Frick v. Trustees of who holds himself out as a member of a Schools, 99 111. 167 ; Lbchte v. G^l^, 1 board of trade and induces others to deal McGloin (La.), 52. In the last case with him as such will be estopped the question was of the application of against them to deny his membership, this rule to a special state of facts, to Chicago Packing Co. v. Tilton, S7 lU. wit, the permitting of one's name to be 547. kept over the place of business of an- ^ This is the true rule, though it has other. The rule was considered to apply, ■ometimes been supposed that aU men See also White o. Morgan, 42 Iowa, 118. may treat one as partner who holds one- ^ Lochte v. GiH, supra ; Frick v. self out as such. The distinction is Trustees of Schools, 99 111. 167, where without foundation. Upon this point, trustees were held out for a long period and upon the whole matter of ' holding of time as having certain powers, out* as partner, see the lucid and con- * Stebbins v. Walker, 46 Mich. 6. vincing exposition by Mr. James Par- • See Jewell v. Bock River Paper sons in his recent work on Partnership, Co., 101 111. 57 ; Angle v. Northwestern § 69 (Boston, 1889). Of course if there Ins. Co., 92 U. S. 880; Whitmore «. was an actual partnership, the liability Kickerson, 125 Mass. 496 ; Greenfield would extend to all persons, whether Bank v. StoweU, 123 Mass. 196, 199; there was a * holding out * or not ; hold- Bigelow's Bills and Notes, 571-578. ing out has no significance except where ^ Agency has sometimes been put the one held out was not, in point of upon the ground of estoppel in pais, fact, a partner. Parsons, ut supra. as in Griswold v. Haven, 25 N. Y. 595. « James v. Rn8. See Griswold v. Haven, 25 N. T. V. Thomas, 54 Ala. 414, seeras to have 595. been wrongly decided. * Dod^e «. Pope, 93 Ind. 480, 487 ; 1 Cox p. Bruce, 18 Q. B. D. 147, Irvine v. Scott, 85 Ky. 260. 0. A. ; Barnett v. South London Tram- * Osbom v. Elder, 66 Oa. 360. Not ways Co., lb. 815, C. A.; Newlands v. to cases of usury. Ibid.; Tribble v. An- National Employers' Accident Assoc., derson, 63 Ga. 31. See also p. 558, 54 L. J. 428. note. 3 Sheffield v. London Joint Stock Bank, 13 App. Cas. 383. SECT. I.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 567 Dezell V. Odell ^ it appeared that the plaintiff, a constable, hav- ing levied upon goods, delivered them to the defendant on his giving a receipt promising to redeliver them by a given day, and that when the day arrived he refused to comply with his promise, and claimed that the goods were his own at the time the levy was made. But the court held him estopped in trover for the goods to set up this defence,^ on the ground that the officer had been induced to part with the possession, or to for- bear taking actual possession by the tiefendant's recognizing his light and agreeing to take or hold for him.^ But a receiptor is ^ 8 Hill, 215. salt, assert his claim against that party. ^ Di-esbach v, Minnis, 45 Cal. 223 ; * Statutory replevin bond is not the form Eleven v. Freer, 10 CaL 172; Gaff v. in which adversary claim to property can Harding, 6<5 111. 61 ; Dewey v. Field, 4 be asserted. It proceeds on the conces- Met. 381 ; Horn v. Cole, 51 N. H. 287; sion that the property seized belongs to The Straggle, 1 Gall. 476 ; George v, the defendant, and the bond is given to Tate, 102 U. S. 564, 571 ; Roswald v. save the expense of safe custody, and Hobbie, 85 Ala. 78, 77 ; Sponenbarger to secure its return to the possession of V. Lemert, 23 Kans. 55 ; Haxtun v, the defendant, to remain there until the Sizer, ib. 810 ; Bursley v. Hamilton, 15 suit is determined.' Brown v, Ha'mil, Pick. 40 ; SUples v. Fillmore, 48 Conn. 76 Ala. 506, 508, Stone, C. J. See I>Iead 510; Dorr v. Clark, 7 Mich. 810; v. Figh, 4 Ala. 279 ; Dunlap v. Clements, Williams v. Vail, 9 Mich. 162 ; Burk 17 Ala. 778 ; Cooper v. Peck, 22 Ala. V. Webb, 32 Mich. 173 ; Lindner o. 406 ; Mitchell v. Ingram, 38 Ala. 396. Brock, 40 Mich. 618, 621 ; Easton v. ' Co wen, J. speaking for the court, Goodwin, 22 Minn. 426 ; Scanlan v, said : ' It may be conceded that had the O'Brien, 21 Minn. 434. See Knights defendant's claim been interposed at the «. Wiffen, L. R. 4 Q. B. 660 ; Ijcwis time of the levy, and he had signed the V. Webber, 116 Mass. 450; Learned v. receipt in terms without prejudice to Bryant, 18 Mass. 224 ; Anthony v. his right, the question would have been Bartholomew, 69 Mo. 186 ; Diossy v. ojien. The creditor would thus have Morgan, 74 N. Y. 11 ; Harrison v. Wil- been put upon his guard and enabled kin, 78 N. Y. 390 ; Perry v, Williams, to seek for other property, on finding 89 Wis. 839 ; Bell v. Shafer, 58 Wis. that his debtor had no title to that in 223 ; Hundley v. Filbert, 73 Mo. 84 ; question. Indeed, here was a course of Brown ». Hamil, 76 Ala. 506, ^09 ; Easly action on the part of the receiptor di- V. Walker, 10 Ala. 671 ; Adler v. Potter, rectly calculated to influence the con- 67 Ala. 571 ; Garrity ». Thompson, 64 duct of the creditor in a way prejudicial Texas,597; Adouev. Seeligson, 54Texas, to his interests, unless we hold the re- 693 ; Tmeblood r. Knox, 73 Ind. 310. ceiptor. The officer being induced to If a man claiming an interest in prop- part with the possession or to forbear, erty attached as that of another join in taking actual possession by the receiptor a (statutory) replevin bond as surety, he recognizing his right and agreeing to thereby admits that the property be- take or hold for him, was itself an in- longs to the person hgainst whom the jury ; if we now let the defendant go attachment is made, and he cannot af- free, we then have a clear case of an terwards, especially after judgment in admission by the defendant, intended favor of the plaintiff in the attachment to influence the conduct of the man 668 ESTOPPEL IN PAIS. [CHAP. XVHL not in all cases estopped to assert his own title to the property. If the property has not been delivered back to him, he will not be estopped to claim it.^ So if the admission consisted of mere formal statements which were deemed unimportant at the time, and no one was deceived by them or induced to alter his posi- tion, the party is not bound * Where, however, the defendant knowing all the facts relating to his own title gave an attaching officer a receipt therefor, promising to deliver the property on demand, and gave no notice that he claimed it as his own, and it appeared that when the attachment was made and the receipt given there was other property of the debtor which the officer with whom he was dealing and actually addition that he was drawn into the ad- leading him into a line of conduct which mission of an adverse title by fraud, or must be prejudicial to his interests un- perhaps by some gross mistake of fact, less the defendant be cut off from the he may be able to defend himself. [See power of retraction. This I understood ante, pp. 524-534.] But by taking and to be the very definition of an estoppel holding he draws the onus of showing in pais. For the prevention of fraud the fraud or mistake upou himself. The the law holds the admission to be con- defendant below offered no proof of the elusive. The principle is the same as kind; but, on the contrary, it is entirely that \»hich prevails between landlord apparent that the title which be pro- and tenant. The latter must surrender posed to set up at the trial was known possession simply because he has received to him at the time of the levy and re- it. The general doctrine is not denied, ceipt. The officer was, when he came The argument is that it should not be to sell, for the first time apprised that applied in favor of an officer coming un- the defendant had title. This was in der pretence of legal authority and de- general terms. At the trial he proposed manding the property. It is thought to show that he had purchased it of a the receiptor should be taken to have third person with his own funds. In been coerced into the giving of a receipt short, his conduct may be summed up as the only expedient for retaining the in this way : He had fraudulently de- possession. I think otherwise. If a prived the creditor of possession through man have a title, an officer is no more the officer, baffled him in his search for in respect to him than a mere stranger, other property, and in the use of all He may either use the necessary force means for collecting his debt, drawn to retain possession, or take the more him by equivocal conduct into the ex- usual and prudent course of an action pense of an action, and at the trial at law for the wrongful seizure. In claims the whole as constituting a legal short, his remedies are in this respect defence. I think it was not so for the the same as those of any other proprietor simple reason that the law uniformly whose rights are improperly interfered throws the consequence of such a course with. The intendment against him is upon the party who leads in it, by ap- therefore the same as it would be against plying the salutaiy doctrine of estoppel a man in possession of land taking a de- in pais.' mine from an adverse claimant. It is ^ Case v. Shultz, 81 Kans. 96. not enough for him afterwards to show * Barron ?\ Cobleigh, 11 N. H. 559 ; that he had title. If he can show in Dewey v. Field, 4 Met. 381. 8BCT. I.] BSTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 669 would have attached if- the defendant had then Bet up his claim and refused to give the receipt, it' was held that the defendant was estopped to set up a title in himself to the property.^ The doctrine of Pickard v. Sears had been declared and en- forced several years earlier in America,* though no distinct defi- nition of the estoppel was given in the case first referred to. The plaintifiT (Baird) in that case declared in trover for the con- version of certain lumber. It appeared that the lumber was the joint property of the defendant Stephens and one Benedict, one fifth of it belonging to Benedict and the rest to Stephens. The plaintiff had purchased the lumber under an execution sale against Benedict, which sale had taken place in this way : The execution creditor sent the officer to Stephens, told him he had an execution against Benedict, and asked hini to point out to him the lumber which Benedict owned. Stephens then showed him a quantity, and told him that Benedict owned a fifth part of it. Such a part was then levied upon and receipted for, and sold to Baird without notice of any claim by Stephens. The latter now attempted to set up the defence that Benedict's in- terest was under a special executory contract which he had not performed ; but the court refused to hear the defence on the ground that it would be a violation of good faith to permit Stephens now to set up any special agreement between him and Benedict to defeat the title of the plaintiff below, who was a bona fide purchaser at the constable's sale.^ To constitute this particular estoppel by conduct, repre- sented by Pickard v. Sears, all the following elements must be present : * — 1 Dewey p. Field, 4 Met 881. See • See Dewey ». Field, supra, also Ladrick v. Briggs, 105 Mass. 508 ; * Blodgett v. Perry, 97 Mo. 263, Heath v. Keyes, 35 Wis. 668. If the 273 ; Kraft v. Baxter, 38 Kans. 351, eonditioD of a delivery bond is that the 356 ; Taylor v, Nashville R. Co., 86 property shall be delivered to the plain- Tenn. 228, 244 ; Equitable Mortgage tiff in the suit if the delivery is adjudged Co. v. Norton, 71 Texas, 683, 689 ; to him, a surety in the bond may set up Bynum v. Preston, 69 Texas, 287, 291 ; an interest in the property. Rathbone Steed v. Petty, 65 Texas, 490-495 ; V. Boyd, 30 Kans. 485. Mason v. Harper's Ferry Bridge Co., 28 « Stephens v. Baird, 9 Cowen, 274 ; W. Va. 639, 649; Stevens v. Dennett, 51 Welland Canal Co. v. Hathaway, 8 N. H. 324; People v. Brown, 67 111. Wend. 480. 485 ; Martin v. Zellerbach, 88 Cal. 800, 570 ESTOPPEL IN PAIS. [CHAP. XVIU. 1. There must have been a false representation or a conceal- ment of material facts.* 2. The representation must have been made with knowledge, actual or virtual, of the facts.* 3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter. 4. It must have been made with the intention, actual or vir- tual, that the other party should act upon it 6. The other party must have been induced to act upon it. The consideration of each of these elements in detail ^ must occupy the remainder of this chapter. § 2. The Representation. It is important to remember * that the term * representation * includes both express and implied statements.^ It is not nec- essary that there should be an express statement; wliatever word, action, or conduct conveys a clear impression as of a fact is embraced in the term.^ Indeed, the term, as we have seen 815 ; Turnipseed v. Hudson, 50 Mis8« venience may be here giveu in full. 429 ; May o. Gates, 137 Mass. 389, 892; They were thus put : (1) If a loan by Acton V. Dooley, 74 Mo. 63, 67 ; Hos- his words or conduct wilfully endeavors ford V. Johnson, 74 Ind. 479, 485. to cause another to believe in a certain ^ Pittsburg V. Danforth, 56 N. H. state of things which the iirst knows to 272. be false, and if the second believes in ^ Wright's Appeal, 99 Penn. St 425, such state of things, and acts upon his 432. belief, he who knowingly made the false * The elements of the estoppel with stat(*ment is estopped from averring their qualifications should be considered afterwards that such a st^te of things in connection with the elements of the did not in fact exist. (2) If a man action of deceit ; to which there is the either in express terms or by conduct closest correspondence. See Freeman o. makes a representation to another of the Cooke, 2 Ex. 654 ; Swan v. North Brit- existence of a certain state of facts which ish Co., 7 Hurl. & N. 603, Martin, B. ; he intends to be acted upon in a certain Big«Iow, Torts, ch. 1, Students* Series, way, and it be acted upon in that way, an(l Fraud, ch. 1 ; and es}>ecially the in the belief of the existence of such a present writer's note in 1 Story's Equity, state of facts, to the damage of him who pp. 204 et seq., 13th ed. - so believes and acts, the first is estopped ^ See the definition, ante, p. 656. from denying the existence* of such a * Peery v. Hall, 75 Mo. 503, 507. state of facts. (3) If a man, whatever ^ This is well brought out in the his real meaning may be, so conducts four propositions of Mr. Justice Brett himself that a reasonable man would (now Lord Esher) in the well-known take his conduct to mean a certain rep- case of Carr v. London Ry. Co., L. R. resentation of facts, and that it was a 10 C. P. 307, 816, 817, which for con- true representation, and that the Isttw SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 571 and shall see further, practically includes silence in certain cases ; silence where one is boand to speak (in regard to which later) is ordinarily equivalent to an admission of the fact Thus, the witnessing of a deed to one's own land, done with knowl- edge of the real state of the title, for a grantee ignorant of the rights of the witness, will, at least in equity, estop the witness to set up against the gi'autee a claim to the land existing in the witness when the deed was executed.^ On the other hand, a representation in pais * in writing * when not part of a deed or made the subject of a contract, though on oath, is no more efficacious, so far as the question of estoppel is concerned, than a verbal statement^ was intended to act upon it in a partic- tation. Laughlin v. Mitchell, 121 U. S. ular way, and he with such belief does 411. act in that way to his damage, the first ^ Sworn statements in pleadings and is estop(>ed from denying that the facts depositions, and solemn admissions in were as represented. (4) If, in the jndicio (but not the admissions of a transaction which is in dispute, one has witness on the stand. Wilkinson v. led another into the beUef of a certain WUson, 71 €ra. 497. Contra and liad state of facts, by conduct of culpable law, Folger i;. Palmer, 35 La. An. 748), negligence calculated to have that result, are ordinarily conclusive, though not if and such culpable negligence has been inconsiderate or without full kiiowl- the proximate cause of leading and has edge. Allen v, Westbrook, 1 6 Lea» led the other to act by mistake upon 251, disclaimer of title to property; such belief to his prejudice, the second Smith v. Fowler, 12 Lea, 163, 171; cannot be heard afterwards, as against Chilton v. Scruggs, 5 Lea, 308 ; Wat- the first, to show that the state of facts terson v. Lyons, 9 Lea, 566, 571 ; Mc- referred to did not exist. £wen v. Jenks, 6 Lea, 289 ; Stephenson These profK)8itions are intended to be v. Walker, 8 Baxter, 289 ; Cooley v. severally exclusive of each other, and State, 2 Head, 608 ; Stillman v, StiU- to constitute an epitome of the law of man, 7 Baxter, 169 ; Hamilton v. Zim- estoppel by misrepresentation. Seton v. merman, 5 Sneed, 89 ; Cook v. McCahill, Lafone, 19 Q. B. D. 68, 70, Lord Esher. 41 N. J. £q. 69 ; Miller v. Wilkins, 79 ^ Hale V. Skinner, 117 Mass. 474 ; Ga. 675; Cheney v. Selman, 71 6a. 384; Stevens v. Dennett, 51 N. H. 824. Clark v. Clark, 70 6a. 862 ; Cresham And procuring another to witness one*s v. Ware, 79 Ala. 192, admission in an- deed estops one to deny the witness's swer ; Prentice v. Stefan, 72 Wis. 151, competency, at least if the facts were admission of service of process, known. Hill v. Hill, 58 Vt. 578. See * Cummins v. Agricultural Ins. Co., also Morse v, Byam, 55 Mich. 594. A 67 N. Y. 260. So in a pleading. Chat- fortiori, if A/otTi with B in a deed, e. g. fiehl v. Simonson, 92 N. Y. 209; Russell a lease, in which the property is repre- v, Kiemey, 1 Sandf. Ch. 84. sented to belong to B, A will be estopped * Connecticut Ins. Co. v. Schwenk, to deny the title of B's devisee to the 94 U. S. 598, 596 ; McMasters v. In- property, especially if for many years, suranoe Co., 55 K. Y. 222 ; Darke o. down to the death of B, A made no Bush, 57 6a. 180 ; Savage v. Dowd, 54 chum against the truth of the represen- Miss. 728, married woman. This, how* ESTOPPEL IN PAIS. [CHAP. XVIIL The represe&tation in order to work an estoppel must be of a nature to lead naturally, i e. to lead a man of prudence, to the action taken.^ Hence, in the first place, it must generally be a material statement of fad? It can seldom happen that a state- ment of opinion or of a proposition of law * will conclude the party making it from denying its correctness ; except where it is understood to mean nothing but a simple statement of fact.^ Thus, if an indorser of a note were to say that he was liable thereon, and show the notice of dishonor, he could not after- wards allege against one who had thereby been induced to pur- chase the note that he had not received notice of dishonor ; ^ or if by his conduct he were plainly to affirm that he had received notice of dishonor, he could not deny the fact® But if the representation were that he was liable by reason of a demand made upon the maker before daylight or at midnight,^ he would not be estopped to deny his liability ; unless, indeed, he was reasonably understood as agreeing not to assert his rights. The rule we apprehend to be this ; that where the statement or conduct is not resolvable into a statement of fact as distin- guished from a statement of opinion or of law, and does not amount to a contract, the party making it is not bound, unless he v^ guilty of clear moral fraud, or unless he stood in a ever, is not to say that a statement or See Goodwin v, Robarts, 1 A pp. Cas. affidavit may be permitted to stand and 476, Lord Cairns ; Fine Art Soc. v. the party who made it act inconsistently Union Bank, 17 Q. B. D. 703, C. A.; with it. Davis v. C. R Co., 40 Iowa, Colonial Bank v, Hepworth, 86 Ch. D. 292. A man must act consistently so 86, 53. No notice was taken in these far as the rights of others dealing w^ith cases of the fact that the representation him are concerned. was one of law. It seems probable that ^ Hefner 9. Vandolah, 57 III. 520 ; the rale against such representations Howe Machine Co. v. Farrington, 82 has been pressed too far. Comp. Lucy N. Y. 121. See First Evang. Church ». Gray, 61 N. H. 151 ; ante, p. 875, V, Walsh, ib. 363. note. * Hamroerslough «. Kansas City * Mason ». Harper's Ferry Bridge Co., Assoc., 79 Mo. 81 ; Phelps v. Illinois 28 W. Va. 639, 649, quoting the text ; Cent. li. Co., 94 111. 648; Frame v, Whitwell v. Winslow, 184 Mass. 343. Badger, 79 111. 441 ; McGirr o. Sell, 60 But see Mattoon v. Young, 5 N. Y. Ind. 249. Supreme Ot. 109 ; 8. o. 45 N. Y. 696. • There may arise, it seems, an es- * St. John r. Roberts, 31 N. Y. 441. toppel by representation to dpny negoti- • Libbey v. Pierce, 47 N. H. 309. ability to an instrument, though apart ^ Or if one should represent a non- from the estoppel the question of nego- negotiable note to be negotiable. Whit- tiability would be a question of law. well 9. Winslow, 134 Mass* 343. SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 673 relation of confidence towards him to whom it was made. If the statement, not being contracted to be true, is understood to be opinion, or a conclusion of- law from a comparison of facts, propositions, or the like, and a fortiori if it is the declaration of a supposed rule of law, the party may, with the qualification stated in the last sentence, allege its incorrectness.^ If, how- ever, the conclusion were part of a contract, as for the settlement of disputed rights between the parties, it would be conclusive, at least after it had been acted upon, though the contract were not under seal ; since the law would uphold the contract.^ The rule in regard to statements of opinion and statements of law is, it seems, based upon the ground that the truth is un- certain, or that the person to whom the statement is made knows as much about the matter as the other. When this is not the case, when the person making the statement in the form of an opinion, or perhaps of a rule of law, knows of facts which make the 'opinion' a sham, or knows that his rule of law is false, he has really made a misrepresentation of fact in the one case, and of something in the nature of fact in the other (in that his statement amounts to an assertion that the law has been so laid down) ; and then if the rest of the elements required in ordinary cases of misrepresentation are present, the estoppel is made out So too real opinion may probably come withiff the notice of the law, in certain cases of trust and confidence. An example may be given: — A representation of value, though, as resting on the ground of a statement of opinion, ordinarily unattended with any legal con- sequences,®— 'simplex commendatio non obligat,* — may in prac- 1 See Whitwell ». Winslow, 134 Kansas City Assoc, 79 Mo. 81 ; Tilton Maas. 343 ; Chatfield v. Simonson, 92 v. Nelson, 27 Barb. 595 ; Storre v. N. Y. 209, 218 ; Brewster v. Striker, Barker, 6 Johns. Ch. 166. Bepresenta- 2 Comst. 19 ; Norton v. Coons, 6N. Y. tion of another's credit may be acted 33 ; 1 Story's Equity, pp. 206, 207, 13th upon. Hendershot v, Henry, 63 Iowa, ed., note by the present writer ; Wise v. 744 ; Pasley v. Freeman, 8 T. R. 51 ; Fuller, 29 N. J. Eq. 262; Suessenguth v. 8. c. Bigelow's L. C. Torts, 1. Bingenheimer, 40 Wia. 870 ; Birdsey r. » See 1 Story, Contracts, § 571, 6th Butterfield. 84 Wis. 52 ; Pike v. Fay, ed. In Carpenter v. BuUer, 8 Mees. 101 Maas. 134, 137 ; Sowai-d v. John- & W. 209, 212, Parke, B. aays that a re- ston, 65 Mo. 102 (opinion of an attor- cital in instruments not under seal may ney aa to a title. But see Hart v. Bui- be such as to be conclusive, lion, 48 Texas, 278) ; Hammerslough r. • Deming v. Darling, 148 Mass. 604. 574 ESTOPPEL IN PAIS. [CHAP. XVni. tical operation sometimes acquire the standing of a statement of fact. This will be the case, and the law will take cognizance of it, it seems, where special trust and confidence is known to be reposed in the party making the representation, and he actually or virtually claims the knowledge of an expert, or where he stands in a confidential relation towards the one to whom he makes the representation and with whom he is dealing on that footing.^ The same may also be true where the person dealing upon the faith of the representation has no means, or very inadequate means, of knowing the facts. Thus, if a shipper represents and agrees that the goods delivered to the canier are of a certain value, and the carrier is thereby induced to grant him a particu- lar rate for carriage, the shipper, on a loss of the goods, will be estopped to claim that they are worth more than represented.^ But such a case, it must be admitted, approaches to a representa- tion of fact; and the whole suggestion in regard to real opinion treads on delicate ground.® The representation or concealment must, in the second place, like a recital,* in all ordinary cases have reference to a pi-esent or past state of things ; for if a party make a representation ' concerning something in the future, it must generally be either a mere statement of intention or opinion, uncertain to the knowledge of both parties, or it will come to a contract, with the peculiar consequences of a contract,^ or to a waiver of some term 1 See 1 Story's Equity, pp. 207, 208, Texas, 613, 617; Mason o. Harper's 13th ed. Ferry Bridge Co., 28 W. Ya. 689, 649 ; ^ Graves v. Lake Shore B. Co., 137 Turnipseed v. Hudson, 50 Miss. 429 ; Mass. 33. The case is not made differ- Allen v. Hodge, 51 Vt. 436 ; Starry v. ent by the fact that the loss was caused Korab, 65 Iowa, 267. See lites v, by negligence. Ibid. Addison, 27 S. Car. 226, 232 ; Botts o. * Deming v. Darling, 148 Mass. 504. Fultz, 70 Ind. 896 ; Conklin v. Conk- * See ante, p. 366. lin, 54 Ind. 289. Simonton r. Liver- B Jackson v. Allen, 120 Mass. 64, 79; pool Ins. Co., 51 Ga. 76, seems to assume Langdon v, Doud, 10 Allen, 433 ; s. c. the contrary ; but the representation or 6 Allen, 423 ; Maddison v, Alderson, rather promise was not sufficiently acted 8 App. Cas. 467, 473 (denying Ijoftus upon. See also Brightman v. Hick.s, V. Maw, 3 Giff. 592); s. 0. (Alderson 108 Mass. 246, where it was held that a V. Maddison) 5 Ex. D. 293 ; Jordan v, promise within the StAtute of Frauds Money, 5 H. L. Cas. 185; Insurance could not be made binding by way of Co. V. Mowry, 96 U. S. 544 ; Burgess estoppel though it had been acted upon. V. Seligman, 107 U. S. 20, 32; Allen v. So of a contract void on grounds of Bundle, 50 Conn. 9 ; White v. Ash ton, public policy. Langan o. Sankey, 65 51 N. Y. 280 ; Edwards «. Dickson, 66 Iowa, 52. SECT, n.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 575 of a contract or of the peTformance of some other kind of duty.^ The point is well illustrated in Langdon v. Doud, just cited, where the plaintiff sued the defendant as maker of a promissory note ; to which the Statute of Limitations was pleaded. The plaintiff introduced evidence to show that in March, 1855, the defendant, who then lived in Massachusetts, told the plaintiff that he was going to California in about a month from that time, never to return, and would within that month pay the note ; and that he left for California the next day, and remained there till the autumn of 1858, when he returned to Massachu- setts. The plaintiff also offered evidence to prove that he was induced by the defendant's statements to believe that the de- fendant never would return to Massachusetts, and therefore did not bring any suit during his absence, believing that the de- fendant intended to reside in California, and that if he should happen to return, the time of his absence would be excluded ; but the evidence was not received.^ ^ This waiver may be called an es- deuce in California was not perfectly toppel, but it will stand upon a ground true at the time it was made, and that of its own. See chapter 19. he did not make it in entire good faith * Having stated the general rule in and with the purpose of carryiug it into respect to misrepresentations which have execution. This, however, may not be a been acted upon, Bigelow, C. J. speak- decisive consideration. But in the next ing for the court, further observed : place, it was a representation only of a 'Such a representatton is sometimes, present intention or purpose. It was thongh not very accurately, said to op- not a statement of a fact or state of erate as an estoppel ; but its effect is things actually existing, or past and ex- rather to shut out a party from offering ecuted, on which a party might reasona- evidence in a court of justice contrary bly rely as fixed and certain, and by to previous statements. Howard v. which he might properly be guided in Hudson, 2 El. & B. 1 ; Audenried r. his conduct and induced to change his Betteley, 5 Allen, 382; Plumerv. Lord, position in the manner alleged by the 9 Allen, 455. Without undertaking to plaintiff. The intent of a party, how- define the nature or kind of representa- ever positive and fixed, is necessarily tions which will thus operate to preclude uncertain as to its fulfilment, and must a party, we think it very clear that the depend on contingencies and be subject statement proved at the triM of this to be changed and modified by subse- case, which the plaintiff seeks to set up quent events and circumstances. Es- for the purpose of excluding the defence pecially is this true in regard to the of the Statute of Limitations, does not place of one*s domicile. On a represen- come within the nile. In the first place, tation concerning such a matter no per- it does not flp|)ear that the representa- son wouhl have a right to rely, or to tion made by the defendant of his in- regulate his action in relation to any tention to abandon his domicile in subject in which his interest was in- Massachusetts and to take up his resi- volved as upon a fixed, certain and defi- 676 ESTOPPEL IN PAIS. [CHAP. XVIII. The difference between estoppel in pais and contract may be further illustrated : A consigns a cargo of freight by B from New York to New Orleans, and B assures A that the freight will arrive at New Orleans on a day named. A makes his prep- arations to receive it, and charters a steamer to take it on the day named and convey it up the Bed Biver. The cargo is not delivered to A when due, and he brings trover against B, based on its arrival at New Orleans on the particular day and its con- version then and there. Will B be estopped to deny the arrival of the cargo on the day alleged by reason of his representation that it should then arrive ? Certainly not, if it was only a rep- resentation, however strongly made and however certain it may be that A acted upon it in good faith, for the reason that in the nature of things the event was uncertain ; it was a mere expression of intention, and A should not have placed such im- plicit reliance upon the statement. The event was future, and whether it would transpire could not be known. Nor could B be estopped if the statement had gone fuither and become a contract that the goods should arrive on the particular day. The case would then be simply a breach of contract, for which B would be liable in a proper form of action ; but he could not be compelled to pay the value of the cargo on the ground that he was estopped to deny the arrival of the goods at the time agreed upon.^ So too it may be broadly stated that a parol promise made in conjunction with and intended to constitute one of the terms of a written contract but not incorporated into the written instrument cannot operate by estoppel ; * though cases may arise where fraudulent promises of that kind would nite fact or state of things, permanent being in its nature ancertain and liable in its nature and not liable to change, to change it could not properly form a A person cannot be bound by any rule basis or inducement upon which a party of morality or good faith not to change could reasonably adopt any fixed and his intention, nor can he be precluded permanent course of action.' See Jor^ from showing such a change merely be- dan v. Money, 6 H. L. Cas. 185 ; Caton cause he has previously represented v, Caton, 34 Law J. Ch. 564 ; Maddison that his intentions were once different v. Alderson, 8 App. Cas. 467. from those which he eventually exe- ^ See also Starry v, Eorab, 65 Iowa, cuted. . . . The reason [of the doctrine 267. of estoppel] wholly fails when the rep- > Insurance Co. v, Mowry, 9<{ U. 8. resentation relates only to a present in- 544. tention' or purpose of a party, becauae SECT. IT.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 577 be entitled to the consideration of the courts, and justify an estoppel* Situations may arise, indeed, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favor of the injured par^T — {&-^uch a case the estoppel may sometimes be available to prevent fraud and a circuity of action. Thus, where a mortgagee of lands who had persuaded a son of the mortgagor^ after the death of the latter and when the land was of little value, the son contemplating at the time a removal to another region, to remain on the land and take care of it and support the family of his deceased father, upon a promise that the mortgage should never be enforced against the family, it was held that he would be estopped thereby after the lapse of several years, during which time the son had cultivated the land and called for the family, and the land had grown valuable under his tillage, from taking any steps to foreclose the mortgage.^ It has been held too that if A induce B to rent his land to C by prom- ising not to interfere with the collection of rent, A will be es- topped from so interfering.® So where a person divided a parcel of land and sold it in town lots representing to the purchasers that streets were to be extended through it and bounding the lots accordingly, he was held estopped to deny a dedication to the public* Indeed, an intended contract, ineffectual as such by reason of the omission of some formal step required by law, may generate an estoppel when a manifest fraud would result from treating the whole transaction as wanting in validity.* Thus, a grantee 1 Insurance Co. v. Mowry, 96 U. S. 81 111. 422, 487 : Thongh a promise to 544 ; Shields v. Smith, 37 Ark. 47 ; forgive a debt or to forbear its collection Kimball v. MtnA Ins. Co., 9 Allen, either tem[K>rarily or for an indefinite 540. period, unsupported by any considera- ^ Faxton v, Faxon, 28 Mich. 159. tion, is ineffectual as a defence viewed ' Crime v, Davis, 68 Ga. 188. See merely as an agreement ; yet if the PanRch V. Guerrard, 67 Ga. 319. Sed surety has been induced by such an as- quiere, if damages would suffice. snrance to neglect any of the means * Mansur v. Hanghey, 60 Ind. 864. which might have been used for his in- See also Lomax v. Smyth, 60 Iowa, 223; demnity, the promise may have that Southard v. Sutton, 68 Maine, 575. effect as an estoppel which it wants as * See the following proposition laid a contract, and amount to a defence down in substance in White v. Walker, against any subsequent action brought 87 678 ESTOPPEL IN PAIS. [CHAP. XVUI. destroying his deed with intent thereby to reinvest the grantor with the title conveyed by him will be estopped to claim that his act was without effect (on account of the want of a new con- veyance) if otherwise a fraud would be perpetrated upon the grantor.^ But it is different if no fraud would result^ And it is enough in regard to all these cases of contract to say that they are not cases of estoppel by misrepresentation ; they stand upon ground of their own.^ The representation, further, to justify a prudent man in acting upon it, must be plain, not doubtful, or matter of questionable inference.* Certainty is essential to all estoppels.* The courts will not readily suffer a man to be deprived of his property where he had no intention to part with it^ Thus, in the case of Townsend Bank v. Todd,^ it appeared that a savings bank, in by the creditor. See Harris v. Brooks, Miss. 490, 505 ; International Bank v. 21 Pick. 195. German Bank, 8 Mo. App. S61, 871 1 Dukes V. Spangler, 85 Ohio St. Tumipseed v, Hudson, 50 Miss. 4^ 119, 126 ; Farrert;. Farrar, 4 N. H. 191; Mojarrieta v, Saenz, 80 N. Y. 547 Trull ». Skinner, 17 Pick. 218 ; poet, Keating v, Orue, 77 Penn. St. 89 p. 672, note. See Stanley v. Epperson, Walker t\ Carleton, 97 III. 582 ; Tillot- 45 Texas, 645 ; Herrick v. Malin, 22 son v. Mitchell, 111 III. 518 ; Lawrence Wend. 388 ; Moi^;an v. Elani, 4 Yerg. Univ. v. Smith, 32 Wis. 587. 375. The result should be noticed that ^ Coke, Litt. 352 b ; German v, though there is an estoppel between the Clark, 71 N. Car. 417 ; Van Bibber v. parties there is no conveyance ; towards Beime, 6 W. Va. 168 ; Mason o. Har- strangers without notice the title still per's Ferry Bridge Co., 28 W. Va. 689, remains in the grantee. Ibid. 650. So of waiver ; that to which the ^ Dukes V, Spangler, supra; Jeffers right is waived should be clearly de- V. Philo, 35 Ohio St 173. scribed and identified. A waiver, e. g. * With these cases comp. the whole of a particular right in all lands now ■ubjpct of Estoppel by Contract, shortly owned or hereafter acquired is held of explained ante, p. 455. Comp. also easels no force. Stafford v. Elliott, 59 Ga. of Waiver, post, chapter 20. 837. See also Merrill r. Welsher, 50 * Townsend Bank v. Todd, 47 Conn. Iowa, 61, holding that for a party 190 ; Burgess v. Seligman, 107 U. S. merely to advise that collecting taxes 20, 82 ; Belle of the Sea, 20 Wall. 421 ; for his benefit be suspended is not Johnson v. Owen, 33 Iowa, 512 ; Dav* euough to estop him from afterwards en port B. Co. v. Davenport Gas Co., 43 requiring collection of them. Iowa, 301 ; Bennett v. Dean, 41 Mich. " Blodgett v. Perry, 97 Mo. 263, 472; H. o. 35 Mich. 806; Maxwell v. 273; Preble v. Conger, 66 111. 370 ; Sey- Bay City Bridge Co., 41 Mich. 453 ; mour v. Page, 33 Conn. 61. See Flower Rust V. Bennett, 39 Mich. 521 ; Michi- v. Elwood, ib. 438 ; Glazier v. Streamer, gan Panelling Co. v. Parsell, 38 Mich. 57 III. 91 ; Barrou v. Cobleigh, 11 N. H. 475; Fredenbnrgv. Lyon Lake Church, 559; Palmer v. Williams, 24 Mich. 87 Mich. 476 ; Moors v. Albro, 129 328 ; Ripley i;. Billijigs, 46 Vt. 542. Haas. 9, 13 ; Roach •. Brannon, 57 ^ 47 Conn. 190. SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 579 the hands of receivers, held a satisfied mortgage, the equitable title to which was in A ; while T and wife were in possession claiming against him. A brought ejectment iii the name and with the consent of the receivers. Meantime an undivided in- terest in the land had, contrary to law, been sold for taxes to J, who afterwards conveyed the same with warranty to the wife of T. Before J sold to her he was informed by one of the receiv- ers of the bank, in the absence of A, that the bank had no claim upon the property. About the same time A, in reply to an in- quiry, told J that he then had no title to the property, that he ought to have one, but had not been able to get any ; and after- wards, before J sold the property, A met him, by appointment, on the premises, when it was agreed that upon A's obtaining his title from the bank, J should release his tax title for a reason- able consideration. J informed T, who was now about making the purchase for his wife, of what had been said ; and this in- fluenced T in buying, and also led J to give a warranty deed. J was now vouched in to warrant his deed and defend the cause, and appearing took the position that A was estopped to claim the land. The court held the contrary, one of the grounds taken being that A's statements had not been certain and definite, so as to justify action upon them. On the other hand, a plain representation cannot be cut down from its natural and proper import in the particular situation or transaction.^ A person who has made a representation cannot escape the consequences by showing that in a literal sense it is true, if in its natural sense it is untrue. A half truth too is generally a whole lie in effect ;2 if the part suppressed would make the part stated false, there is a false representation,* that is, the representation is taken to consist of the part stated ^ This import, therefore, may be tech- Central Ry. Co. v. Eiach, L. R. 2 H. L. nical and peculiar ; or popular, accord- 99, 113. The case of Corbett v. Brown, ing to the business concerned, modified, supra, contains a striking illustration, of course, by any actual understanding See 1 Story's Equity, p. 208, 13th ed. of both parties. But none of the cases cited in this note * See Peek v, Gumey, L. R. 6 H. L. are cases of estoppel ; hence they are 877 ; Tapp v. Lee, 3 Bos. k P. 867 ; not stated here. There can be no doubt, Corbett v. Brown, 8 Bing. 88 ; 1 Story's however, that they are appUcable to the Equity, p. 208, 18th ed. present subject. ' Peek V. Gumey, supra, at p. 408; 680 ESTOPPEL IN PAIS. [CHAP. XVIII. and a denial of anything to the contrary. This assumes, of course, that the stated part is a clear, positive statement of fact Thus, a representation that shares of stock are paid up must reasonably be understood, and so must be held, to mean that they are paid up in cash.^ Indeed, the books abound with illustrations. The case of Guthrie v, Quinn^ will illustrate the point This was a bill in chancery by Quinn against Guthrie, Lewis, and others, in which the plaintiff alleged these facts ; that Guthrie had purchased a horse from him for a certain sum, to be paid about two and a half months afterwards ; that to secure pay- ment Guthrie gave him a mortgage on his growing crop ; that before the sale was consummated Quinn had an interview with the defendant Lewis in regard to the sale, and informed Lewis of the proposition, to which Lewis replied that ' Guthrie would be entitled to half the crop he was making, and it would be all right,' but at the same time advising Quinn to retain a lien on the horse, which was done. The bill further stated that the crop above referred to was growing on the land of Lewis, but that he did not inform Quinn that he had any claim to or interest in the crop. Guthrie afterwards absconded with the horse, and Lewis then for the first time informed Quinn that he had a claim on the crop. The plaintiff now sought to subject this to the pay- ment of his debt by foreclosing the mortgage given by Guthrie ; and the court held him entitled to the remedy.^ Another illustration may be added : If the maker of a note or bond, or mortgage or other contract, tell one proposing to take ^ Barkinshaw v, Nicolla, 8 App. horse. The language was addressed to Cas. 1004, 1021. QniDn. It could not he all right to him 3 43 Ala. 561. if the cotton and com that Outhrie was ' Mr. Justice Peters, speaking for making on Lewis's lands were not liable' the court, now said : ' Quinn applied to the payment of the amount abont to to him [Lewis] for advice when he was be contracted for the horse. Nothing about to sell his horse to Guthrie, and less than this would make it all right Lewis cautioned him not to sell with- with Quinn. If Lewis then had claims out retaining a lien on the horse, and against Guthrie for which the crop was informed him that Guthrie would be liable, it was his duty to have disclosed entitled to one half the crop he was them. If he failed to do this, he waived making on his (Lewis's) land, and that his right. This is the doctrine of tliis "it would be all right." This language court as laid down in Steele v. Adams, could not have been reasonably con- 21 Ala. 634.' See also Simmons t*. strued to mean less than that the crop Camp, 71 Ga. 54 ; McAfee v, Fisher, 64 would be liable to aid in paying for the Cal. 246. SECT. II.] ESTOPPEL BY CONDUCT :. EQUITABLE ESTOPPEL. 581 it, and desiring to know if there is any defence to it, that it is ' all right/ he must allow the words their full natural meaning, and will ordinarily be estopped to deny the truth of this admis- sion (whether fraudulent or not ^) when sued on the instrument by the person to whom it was raade.^ It would not do for the maker to say that he only meant that the signature was his. The words in their natural import mean, not merely that the instrument is genuine, but that it is a binding obligation, for the answer here must be interpreted in connection with the question. The case is much like the certification of a check, already considered.® ^ Simpson v. Moore, 5 Lea, 372. See and nothing short of this would have Lites V. Addison, 27 S. Car. 226, 233. that effect Had there been a suit But see Allen v. Frazer, 85 Ind. 283 ; pending on the' note between Brooks Koons V. Davis, 84 Ind. 387, 389. Is and Martin, and the latter had come not the maker bound to know the facts into court and pleaded that the note in ordinary cases? See post, p. 611, was '*a11 right," the court could not note 7. Comp. ante, p. 492, note 4. have refrained from giving judgment ^ Brooks v. Martin, 43 Ala. 360; against him. Now, by his words he Wilkinson v. Searcy, 74 Ala. 243 ; puts in this plea before suit is brought, Muse V. Dantzler, 85 Ala. 359; Weyh and the law will not permit him V. Boylan, 85 N. Y. 394 ; Smith v, to withdraw it after suit is brought. Munroe, 84 N. Y. 354, 359 ; Smith These words amount to an admission V. Knickerbocker Ins. Co., ib. 589; that Martin cannot take back with- Fleischmann v. Stern, 90 N. Y. 110 ; out inflicting an injury upon Brooks Union Sav. Inst, v, Wilmot, 94 N. Y. who had acted upon it.' But if a de- 221 ; Hoover v. Kilander, 83 Ind. 420 ; fence arise subsequently to the repre- Plummer v. Farmers' Bank, 90 Ind. sentation, the maker may set it up. 886 ; Preston v. Mann, 25 Conn. 118; Cloud v. Whiting, 38 Ala. 57 ; Maury Feltz V. Walker, 49 Conn. 93 ; Bates v. Coleman, 24 Ala. 381 ; Koons v. V, Leclair, 49 Vt. 229 ; Hefner v. Daw- Davis, 84 Ind. 887, 390 ; Plummer v. son, 63 III. 403 ; Plant v, Yoegelin, 80 Farmers' Bank, 90 Ind. 386. So if the Ala. 160; McCabe v. Raney, 32 Ind. statement is made to one who has already 809 ; Vanderpool v. Brake, 28 Ind. 130 ; taken the note, no estoppel is created. Bose V. Hurley, 39 Ind. 77. But see Crossan v. May, 68 Ind. 242. And it Jaqna v, Montgomery, 33 Ind. 36. has been intimated that one may not be Peters, J. in Brooks v. Martin, supra : estopped to deny the genuineness of a ' There can ' scarcely be a reasonable signature to a note purporting to be his doubt that the words used by Martin in own, by merely declaring the note to be answer to Brooks's inquiry about the good, unless he knew that it was not note were calculated to mislead and de- genuine. Koons v, Davis, 84 Ind. 387, ceive if they turned out to be unti-ue. 389. But this may be doubted, unless It is difficult to conceive what would perhaps the note was not exhibited to make a note "all right" that could not him at the time, and there was an ex- be collected by suit, or that would not cuse for his mistake. Post, p. 611, n. 7/ be paid at maturity if the maker was ' Ante. pp. 499 et seq. But comp. able. This would make it all right, Stubbs v. Johnson, 127 Mass. 219, in 582 ESTOPPEL IN PAIS. [CHAP. ZYIU. In like manner^ however definite the representation, it cannot be enlarged or acted upon otherwise than according to its terms or natural import and clear meaning.^ Thus, a representation of existing facts must be taken as limited to facts of that kind ; it cannot be extended to events of the future.' So if the maker of a note, in reply to the question, from one who was about to purchase it, whether he had any defence to it, should say ' no,' or perhaps if he should say that the note was 'all right,' he would not be deemed to have affirmed his own solvency or ability to pay it in fulL No question was asked leading obviously to disclosures that way.' Again, the whole repre- sentation must be taken together. One part, though sufficient alone to create an estoppel, cannot- be separated from another part connected with it, which takes away its effect, though only by making the other part uncertain.^ Again, to say that the representation must be such as would naturally lead a prudent man to act upon it is also to say that it must be material. That is equally essential to the estoppel^ This, however, does not mean that the representation in question must have been the sole inducement to the change of position ; if it were adequate to the result, — that is, if it might have gov* erued the conduct of a prudent man, — and if it did influence the result, that will be enough, though other inducements op- erated with it.^ And the law will not undertake, in favor of which it is considered that the state- say that the answer must always be in- roent may be only an expression of terpreted by the question, for the answer opinion. may have gone much further than the ^ Seymour v. Page, 88 Conn. 61 ; question, and so have come to be a dis- McAfee v. Fisher, 64 Cal. 246 ; Starry tinct and se|)arate representation stand- V. Korab, 65 Iowa, 267 ; Swsger v. Leh- ing by itself. Or the answer may have man, 63 Wis. 399 ; Planters' Ins. Co. v, taken a wholly new direction from the Selma Bank, 63 Ala. 585 ; Dunston v, outset, and so haye no relation at all to Paterson, 2 C. B. s, s. 495 ; Davis the inquiry. V. Bowmar, 55 Miss. 571 ; Barrett v. * Irvin o. Nashville By. Co., 92 ID. Joannes, 70 Mo. 439 ; Murray v. Jones, 108 ; Townsend Bank v, Todd, 47 Conn. 50 Ga. 109 ; Tilton v. Nelson, 27 Barb. 190, 216. 595 ; Adams v. Popham, 76 N. Y. • Blodgett r. Perry, 97 Mo. 268, 410. 278 ; Comp. Smith v. Chadwick, 20 Ch. > Planters' Ins. Co. v. Selma Bank, D. 27 ; s. a 9 App. Cas. 187 ; Slaugh- 68 Ala. 585 ; Williamson v. Mimms, 49 ter v. Genson, 13 Wall. 879. Ark. 836, 847, 848. • McAleer v. Horsey, 85 Md. 489. * It would doabtleas be too much to BECT. IL] estoppel BY CONDUCT : EQUITABLE ESTOPPEL. 688 a wrongdoer, to separate the various iuducements presented, and ascertain precisely how much weight was given to the represent tation in question. The i^presentation roust have been a free voluntary act ; and if obtained by the party who has acted upon it, it must have been obtained without artifice. If it has been procured by duress ^ or by fraud, there will be no estoppel upon the party making it, it would seem, though he made it with the full inten- tion that it should be acted upon ; ^ indeed, it is said that where the conduct supposed to have created an estoppel was brought about or directly encouraged by the party alleging the estoppel, no estoppel is created.^ But that must probably be understood of something in the way of artifice or other questionable endea- vor. In Wilcox V, Howell, before cited, an action was brought to foreclose a mortgage executed by the defendant to one Picard, and by him assigned to the plaintiff. It was proved that the mortgage had been procured by fraud ; but it also appeared that the defendant had given a certificate, which was delivered to the plaintiff with the mortgage, that the security had been given * for a good and valid consideration to the full amount thereof, and that the same was subject to no offset or defence whatever.' It appeared, however, that this certificate had also been procured by the mortgagee by fraud, and that it was not given to induce the plaintiff to buy the mortgage or to enable the mortgagee to negotiate it; on the contrary, it was given with the understand- ing that he should not negotiate it. The court held the defend- ant entitled to deny the representation made in the certificata A representation may arise not only by way of concealment of part of the truth in regard to a whole fact, as we have ^ See Cicotte V. Wayne, 59 Mich. £q. 94. In the recent case of Gray v. 509. Oray, supra, a tax vote aUeji^d to * German Sav. Inst. v. Jacoby, 97 have raised an estoppel against the tax- Mo. 617, 625 ; Gray v. Gray, 83 Mo. payers had been obtained by fraudulent 106 ; Wilcox v. Howell, 44 N. Y. 898 ; representations ; and it was held that s. c. 44 Barb. 396 ; kolden v. Putnam its validity might be disputed, though Ins. Co., 46 N. Y. 1 ; Calhoun v. Rich- money had been expended under it ardson, 30 Conn. 210 ; Coari v. Olsen, See Roe v. Jerome, 18 Conn. 138 : Hol- 91. III. 273; First National Bank v. den «. Putnam Ins. Co. 46 N. Y. 1. Bicker, 71 III. 489 ; Sinnett v. Moles, * Gallagher v. People, 91 111. 583. 88 Iowa, 25; Stanford v. Lyon, 87 N. J. 584 ESTOPPEL IN PAIS. [CHAP. XVIH. seen ; ^ more than that, from total but mideading ^ silence with knowledge, or passive conduct joined with a duty to speak, an estoppel will arise.^ The case must be such that it would be fair to interpret the silence into a declaration of the party that he has, e. g. no interest in the subject of the transaction. Indeed, silence, when resulting in an estoppel, may not improperly be said to have left something like a representation upon the mind; for the case is this : A negotiation is going on, and the mind receives the facts brought out, and receives those facts only. Hence, everything inconsistent with them, relating to the rights of othera present as well as to those of the party with whom the negotiation is going on, is excluded. The effect may be consid- ered negative, but the mind sees and may actually regard that negative ; indeed, that, in large part, is the meaning of calculat- ing the advantages of the proposal.^ This subject of silence, so well illustrated by the case of Pickard v. Sears, heretofore stated,^ was soon after brought again before the same court^ The case referred to was an action of ^ Notice the distinction between this a misleading nature, — it must actually ease of concealed facts and the case of have misled. Maxwell v. Bay City waiver. See end of this chapter. Bridge Co., 46 Mich. 276 ; Canning «. ^ MoKenade v, British Linen Co., 6 Harlan, 50 Mich. 320. That is, like an App. Cas. 82 ; Leather Manuf. Bank o. ordinary representation, it must virtu- Morgan, 117 U. S. 96 ; Brigham v. ally have been acted upon. Ibid. Fayerweather, 144 Mass. 48 ; Rector • Rector v. Board of Improvement, V. Board of Improvement, 60 Ark. 116; 50 Ark. 116, 128, quoting the text; Qill V. Hardin, 48 Ark. 409 ; Vreeland Swayze v. Carter, 41 N. J. £q. 231 ; V, Ellsworth, 71 Iowa, 847, a case going Wheeler v. New Brunswick R. Co., very far; O'Mulcahy «. HoUey, 28 115 U.S. 29, 86 ; Griffin p. Nichols, Minn. 81 ; Burdick v. Michael, 32 51 Mich. 576 ; Markland Co. v, Kim- Mich. 246 ; Anaheim Water Co. v. mel, 87 Ind. 560 ; Anderson v. Hubble, Semi-Tropic Water Co., 64 Cal. 185 ; 98 Ind. 670, 573 ; Kingman r. Graham, Wheeler v. New Brunswick R. Co., 115 51 Wis. 232 ; Boynton v. Braley, 54 U. S. 29, 36. The last case is a strik- Yt. 92 ; Cady v. Owen, 34 Vt. 598 ; ing instance of the difficulty of determin- ante, pp. 659, 571 ; infra, pp. 585, 586^ ing when silence is misleading, — when, 696. that is to say, there is a duty to speak. * It is only for the purpose of an Five judges thought there was not such estoppel that it can be said that there is a duty ; four thought there was. Of a quasi representation in such a case, course there can be no duty to speak in An action of deceit could hardly be main* the absence of knowledge or notice taineil on the footing of a representation of one's rights. Frederick v. Mis- created by pure silence, souri River R. Co., 82 Mo. 402. And * Ante, p. 658. the silence must not only have been of * Gregg v. Wells, 10 Ad. & £b 90. SECT. II.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 585 trover for goods, the fittings and furniture of a public house. The plaintiff being owner of the goods demised them to one Durham, who thei'eupon became tenant of the house to third parties under an agreement made in the plaintiff's presence, giving his landlords a lien on the goods. The landlords, how- ever, did not know that the plaintiff was owner of the property, nor did they know of the arrangement with Durham; and nothing was said or done to apprise them of these facts. Sub- sequently Durham sold the fittings and furniture to the defend- ant without the plaintiff's knowledge, and the defendant purchased in good faith and in ignorance of the plaintiff's title, and thereupon became tenant under Durham's landlords. The court held that the action could not be maintained. Lord Den- man said that the doctrine of Pickard v. Sears might be stated even more broadly than it was there laid down. ' A party,' said he, ' who negligently ^ or culpably stands by and allows another to contract on the faith smd understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving.' * A somewhat similar point to the one before Lord Denman was considered in. Niven v. Belknap.* This was a bill quia timet under the following circumstances* > The plaintiff Niven had applied to the defendant, Belknap, to purchase a farm, then in the possession of Belknap, and was informed by him that a third person, who held a mortgage from him (Belknap) upon the farm to nearly its value, had the disposal of the property. The defendant then went with the plaintiff to the mortgagee, and an arrangement was made between him and the plaintiff in the presence of the defendant for the absolute purchase of the • ^ Leather Manuf. Bank v. Morgan, ^ Studdard v, Lemmond, 4S 6a. 100; supra ; Morgan v. Railroad Co., 96 Whitman v. Boiling, 47 6a. 125 ; Jane- U. S. 720 ; Continental Bank v. Na- Bon v, Janeson, 66 111. 259 ; Tucker v. tional Bank 60 N. Y. 683 ; Coventry Conwell, 67 111. 662 ; Basher v. Wolf, V. Creat Eastern Ry. Co., 11 Q. B. D. 69 111. 470 ; New Haven v, Fairhaven 776, C. A. ; Carr v. London Ry. Co., & W. R. Co., 88 Conn. 421. But the L. R. 10 C. P. 307 ; Kingman v, party cannot be estopped in cases of Graham, 61 Wis. 232 ; Trenton Banking this kind unless he held the title at the Co. V. Duncan, 86 K. Y. 222 ; Anderson time of the purchase or other act. Mar* V, Hubble, 93 Ind. 570; post, §§8 quart v. Bradford, 43 CaL 626. ^ and 4. '2 Johns. 578. 686 ESTOPPEL IN PAIS. [CHAP. XVIH. farm, and the mortgagee thereupon executed a conveyance in fee to the plaintiff, who afterwards took possession as owner and made considerable improvementa on the land. Subsequently the defendant, the mortgagor, made an absolute conveyance of the land to his son, who was a neighbor of the plaintiff; and the father and son were now proceeded against with a prayer that they might be compelled to discover any pretended title to the land, and required to renounce the same or be perpetually enjoined from asserting it. The bill was sustained by the Court of Errors; the court declaring that if a man has been silent when he ought in conscience to have spoken, he shall not be permitted to speak when conscience requires him to keep silent,^ an expression often quoted.^ The principle has been broadly laid down by Mr. Chancellor Kent, and often repeated, in the following terms in effect : If a man knowingly, though passively, by looking on, suffer another to purchase land for valuable consideration,^ under an erroneous impression of title, without making known his claim, he will not be permitted thereafter to exercise his legal right against such person.^ In some states this rule, so far as it applies to ^ Tbe opinion of tbe court was de- barred from speaking when conscience livereii by Thompson, J. who observed: requires him to be silent' ' Thoufirh it does not appear positively ^ See e. g. Guffey v, O'Reiley, 88 from this testimony that Belknap took Mo. 418, 425 ; Nicholas v. Austin, 82 any active agency in this negotiation, Va. 817, 825 ; Gray v. Crockett, 85 yet his presence and silence are equally Kans. 66, 74 ; infra, note 4. efficacious and binding upon him, if the * It is a very different case where one com])lainant was thereby misled and is expending money on one*s own land, deceived. There is an implied as well in the sight of another who does not as an express assent ; as where a man object. That cannot raise an estoppel who has a title, and knows it, stands by in favor of the former. New York and either encourages or does not forbid Rubber Co. v. Rothery, 107 N. Y. 310, the purchase, he and all claiming under 315, expending money for diverting a him shall be bound by such purchase, stream in one's own land. Fotibl. 1(31. It is very justly and * Wendell v. Van Rensselaer, 1 forcibly observed by a writer on this Johns. Ch. 844 ; Storrs v. Barker, 6 subject (Roberts, Frauds, 130), that Johns. Ch. 166 ; Trenton Banking Co. there is a negative fraud in imposing a v, Duncan, 86 N. Y. 222, 228 ; Chap- false apprehension on another by silence man V. Pingree, 67 M-iine, 198, 202; where silence is treacheronsly oppres- Casey v. Inloes, I Gill, 602 ; Schaidt sive. In equity, therefore, where a man v. BlauV, 66 Md. 141, 148 ; Jowers v. has been silent when in conscience he Phelps, 88 Ark. 465, 468 ; Stone v. ought to have spoken, he shall be de- Tyree, SO W. Ya. 687, 702 ; Bradley SECT. II.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 587 interests in land, is available only in equity, because of the Stat- ute of Frauds ; but in many states it is equally available at law.^ And creditors who have been induced to give credit to a party in reliance upon his title to land on which another has a secret encumbrance, which, with knowledge of the creditors^ act, he . fraudulently concealB, are within the rule.^ The principle upon which the rule rests is applied, as we have seen, to personalty, and that too in all its forms, as well as to land.' V. Lnoe, 99 IlL 284 ; Baird v. Jackson, roer there was no tach poaitive act, 98 111. 78 ; Smith v. Hutchinson, 108 but there was a silence so suggestive, so 111. 662 ; Remsden v. Dyson, L. R. 1 pregnant with ill to him, the court was H. L. 129, 140 ; Proctor v. Bennia, justified in leaving its effect to the 86 Ch. D. 740, Bowen, L. J. In the judgment of the jury. Silence wiU last case Cotton, L. J. seems to have postpone a title when one should speak thought it necessary that the party to out, when knowing his own right one be estopped should know that the other suffers his silence to lull to rest, instead was acting in ignorance, but the rule of waniing to danger ; when, to use the is not commonly so stated. He will language of the books, silence becomes ordinarily know that the other is acting a fraud. Such a silence though nega- in mistake, but can it be necessary for tive in form is operative in effect, and the other to show that fact f becomes suggestive in the seeming See also of the rule that where a man security it leads to. He who is led by has kept silent when he ought to have such a silence ignorantly or innocently spoken, he will not be permitted to to rest upon his title, believing it to be speak when he ought to keep silent, secure, and to expend money and make Morgan v. Railroad Co., 96 U. S. 716 , improvements upon his property with- 720 ; Michigan Panelling Co. v. Par- out the timely warning he should have sell, 38 Mich. 475, 480 ; Gingrass v. had to dispel his illusion, will be pro- Iron Cliffs Co., 48 Mich. 413 ; Slocumb tected by estoppel against recovery. V. Chicago R. Co., 57 Iowa, 675, 683 ; Crest v. Jack, 3 Watts, 238 ; Keeler v. Ross V. TliomfiBon, 78 Ind. 90, 96 ; Yantuyle, 6 Barr, 250 ; Commonwealth Young V. Babilon, 91 Penn. St. 280 ; v. Moltz, 10 Barr, 531 ; Woods v. Wil- Chapman v. Chapman, 59 Penn. St. son, 37 Penn. St. 883 ; Miranville «. 214 ; Nass v. Yanswearingen, 10 Sei^. Silverthom, 48 Penn. St. 149.' See & R. 146 ; Epleyr.Witherow, 7 Watts, also Lawrence v. Luhr, 66 Penn. St. 165 ; Carr v. Wallace, ib. 400 ; Lewis 236 ; Miller's Appeal, 84 Penn. St V. Alexander, 51 Texas, 578 ; Hall v. 391 ; Wagner's Appeal, 98 Penn. St. 77. Fisher, 9 Barb. 17, 31 ; Parkhurst v, A husband is not estopped to demand Yan Conrtland, 14 Johns. 15, 43 ; Ma- curtesy by having consented to his lin V. Malin, 1 Wend. 625, 666 ; Adams wife's devising her land. Roach v. V. Rockwell, 16 Wend- 285, 817 ; Otis White, 94 Ind. 510. V. Sill, 8 Barb. 102 ; Chautauqne Bank ^ See chapter 23. In j^egard to V. White, 6 Barb. 589 ; Railroad Co. v. licenses to use land, and other cases of Dubois, 12 Wall. 47 ; Rubber Co. v. waiver of rights known to both parties, Goodyear, 9 Wall. 788 ; Gregg v. Yon see chapter 20. Phul, 1 Wall. 274. * Trenton Banking Co. v, Duncan, In Chapman v. Chapman, 59 Penn. 86 N. Y. 222. St. 214, Agnew, J. says : ' As to Gansa- ' One cannot be barred of the right 688 ESTOPPEL IN PAIS. [CHAP. XVHL Further, an admission, by silence^ of a representation made by the party claiming the estoppel may sometimes raise an es- toppel. In Leather Manuf. Bank v, Morgan^ the plaintiff brought suit to recover a balance alleged to be due to him on deposit account with the defendant bank, including the amount paid by the bank on certain altered checks of the plaintiff. The bank had rendered an account in the plaintiff's pass-book of deposit, and returned the same to him, charging him with payment of the altered checks. These checks had been drawn by the plaintiff, and after having been fraudulently altered had been paid by the bank. The alteration might have been discov- ered in time to enable the bank to take certain action had the plaintiff examined his pass-book in reasonable time after its re- turn ; if, in fact, this had not been done, it was held that he would be estopped to claim for the sums paid out on the altered checks. In such a case he would, by his negligent silence, have admitted the state of the account to be as made out by the bauk.^ But the juiy had been directed by the court below, peremptorily, to bring in a verdict for the plaintiff; this was held error, and the cause was remanded with orders to submit to the jury the question of fault in the defendant and diligence on the part of the plaintiff. A few cases in which silence has been held not to work an estoppel may now be referred to. In Owen v. Slatter' the plaintiff filed a bill to obtain an assignment of dower in cer- tain pieces of land which had been sold under an order of the to the period of limitation of actions account, to his prejudice, and therefore by knowledge that acts of the kind he could give no notice of any. Of here referred to are going on. Bartlett course if the defendant's officers, before V. Kauder, 97 Mo. 866. Paying the altered checks, could by 1 117 U. 8. 96. proper care and skill have detected the ' Mr. Justice Harlan, for the court, forgeries, then it cannot receive a credit said : * There was evidence tending to for the amount of those checks, even show . . . that Cooper failed to exercise if the depositor omitted all ezamina- that degree of care which under all the tion of his account. But if by such circumHtances it was his duty to do. care and skill they could not have dis- He knew of the custom of the defend- covered the forgeries, then the only ant to balance the pass-books of its person unconnected with the forgeries depositors and return their checks as who had the means of detecting them vouchers for payments ; yet he did not was Cooper himself.' examine his pass-book and vouchers to * 26 Ala. 547. see whether there were any errors in the SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 689 Orphans' Court on the application of the plaintiff as administra- trix, to the grantor of the defendants. The defence was that the plaintiff had made no reservation of her claim to dower at the sale, and that the defendants had purchased without notice of her claim. The plaintiff was held entitled to recover, on the ground that her conduct had not been fraudulent.^ In Cambridge Institution for Savings v. Littlefield * the in- dorsees of a promissory note brought an action against the maker, to which the defendant pleaded his discharge in bank- ruptcy. It appeared that before the note was transferred to the plaintiffs, one Wood applied to them for a loan of money, and that the plaintiffs at Wood's suggestion took the note and mort- gage of the defendant as security. Wood guaranteeing thp note. The intention at first was to take a mortgage from Wood. The defendant was present during the transaction, and did not dis- close the fact that he had been discharged in bankruptcy from liability on the note. The plaintiffs now contended that the defendant was estopped to set up his discharge ; but the court held the defence proper. It was, however, intimated that it might have been otherwise had this been the only security obtained.^ ^ Chilton, C. J. in delivering the whftt he is buying, and to purchase opinion of the court, said : * The wid- with a knowledge that the dower is ow's right to dower is unaffected by yet an encumbrance upon the land, the sale unless indeed she bars her The maxim caveat emptor applies ; and right by some act which in a court of if the purchaser blindly bids off the equity would constitute it a fraud in land without inquiring whether the her to insist upon it. The facts of the widow has relinquished her dower or case before us do not make out such a consented to a sale of it, electing to bar. True, the widow in this case is take a share of the proceeds in lieu administratrix, but the law prescribes thereof, it is his folly, and he has no her duties, and so long as she acts one to blame but himself. We are of within the scope of those duties it opinion, therefore, that there was no would be singular, indeed, that she fraud on the part of Mrs. Owen in fail- should forfeit Jier rights as an individ- ing to announce at the sale that the nal, merely by reason of her having land was sold subject to her dower.' properly complied with the require- Com p. Wright v, De Groff, 14 Mich, ments of the law in her fiduciary 164 ; ante, p. 387. character. Such sales when made by '6 Gush. 210. commissioners are judicial in their ' Having remarked that it was es- character, and like sales under execn- sential to such an estoppel that one tions leave the widow's right to dower party has been induced by the conduct unaffected. The purchaser is suppose^ of the other to do or forbear doing to examine the record, and to know something which he would not oi 590 ESTOPPEL IN PAIS. [CHAP. XVIH. In Watson v. Knight^ the plaintifif brought an action of tres- pass against the defendant, a constable, for taking certain prop- erty of his under an execution against one Beason. To support the defence the constable offered to prove that on tlie day of sale Beason claimed the property as exempt from execution, in the presence of the plaintiff, who said nothing. It had been previously shown that Beason formerly owned the property, and had sold it to Knight about a month before the sale by the constable, and had given him possession before the levy. The plaintiff had given the defendant notice that the property be- wonld have done, as tlie eaae might be, security, the silence of the defendant but for such conduct of the other party, as to his discharge from aU liability for Dewey, J. speaking for the court, said : the payment of it might have been *The application for a loan was by strongly urged against him upon his Wood. It was, so far as we can perceive, setting up such discharge as a bar. a loan to be made on Wood's responsi- But independently of a personal liabU- bility» accompanied by a mortgage of ity of the defendant the plaintiffs re- certain land to secure the payment, ceived a valid and valuable security The party lending the money did not for their money. The note was a good originally stipulate for Littlefield's per- instrument for the foundation of a sonal liability. When Littlefield's note mortgage, and equally so whether the was offered as the basis of the mort- personal liabUlty of the defendant to gage, some objection was made to it, pay the note existed or not. So too and thereupon Wood's guaranty was the guaranty of Wood was a legal and given, and the mortgage transferred to valid contract irrespective of the per- the plaintiffs and accepted by them, sonal discharge of the defendant by his The plaintiffs thus received Wood's discharge in bankruptcy. The case is security and a valid mortgage of real not therefore the bald case of a party estate, all equally valid whether Little- standing by and silently permitting a field's personal liability had or had not chose in action to which he is a party been released by his discharge in bank- to be taken as a valid debt, and money ruptcy. If it be said that the guaranty lent thereupon ; he knowing at the of Wood was not as good security as same time that there is a secret taint his promissory note, that objection as to the same that renders it wholly equally exists whether the note of the worthless, and leaves the party taking defendant was valid or invalid as it without any security for the repay- against the plaintiffs. The silence of ment of the loan. On the contrary, the the defendant at the time of making defendant might reasonably suppose the loan to Wood did not change that that the plaintiffs relied principally part of the arrangement ; and the guar- upon the mortgage and the guaranty anty of Wood is equally binding on of Wood as their security for the money him whether the defendant is or is not lent, and it has not been shown or sug- liable. Had the plaintiffs received the ^gested that the land mortgaged and note from the defendant as their sole the guaranty of Wood are not ample, security, or as that upon which they security for the loan/ substantially relied, and parted with ^ 44 Ala. 862. their money on the strength of it as SECT, n.] BSTOPPEL BY CONDUCT ! EQUITABLE ESTOPPEL. 591 longed to him. The evidence offered was excluded hy the court below, and the judgment was affirmed on appeal The court observed that the claim of exemption set up by Beason was as much a defence of his right to sell to the plaintiff as the claim of property in himself, and did not call for contradiction. The defendant had received notice from the plaintiff of his claim, and the declaration of Beason was an additional reason why he should not selL In Hopper v. McWhorter,^ an action of trover for the conver- sion of slaves, it was contended that the plaintiff, administrator of one Pratt, was estopped by reason of the following facts: After the death of Pratt the slaves were divided between the donees of the deceased, and the share to which the plaintiff was entitled was delivered to Mrs. t^ratt The plaintiff was present at the division, and made no objection to Mrs. Pratt's receiving the share allotted her ; and he, having married one of the donees, received the portion allotted his wife. The court held that there was no estoppel.^ In an action of debt on a guardianship bond against the guar- dian and surety ' it appeared that the guardian had been re- moved by an order of court, and that he subsequently received money as guardian. The surety, Holcomb, knew at the time that Phelps, the guardian, was about to receive the money under pretence of holding the position, but he did not interfere or give notice of the removal. It was now contended that Hol- comb was estopped to deny his liability ; but it was held that he was not. It did not appear, the court observed, that Hol- comb did or said anything intended or calculated to deceive or mislead, or to induce any one to change his position ; and the displacement of the guardian having been effected in a judicial proceeding, it could not be deemed incumbent upon the surety ^ 18 Ala. 229. equitable for bim to disregard ; nor, so * The conrt said : * We can per- far as we can see, did he say or do anj- ceive none of the qnalities of an estop- thing in reference to the division, bnt pel in this. Mrs. Pratt, who received simply permitted the share, to which the slaves to which her husband's ad- he, as administrator of Pratt, was en- ministrator was entitled, gave nothing titled, to go into the possession of his for them. The administrator made no widow.' representations which it would be in- * Merrells v. Phelps, 84 Conn. 109. . 592 ESTOPPEL IN PAIS. [CHAP. XYIII. to seek out the plaintiff and communicate to him a fact of which the record of the court gave notice to the world In Taylor v. Ely ^ the plaintiffs as assignees of one Withey sought to foreclose a mechanics* lien in his favor for building a house for the defendants the work on which was commenced by Withey and finished by the plaintiffs. The plaintiffs claimed a balance due of $1,500. It appeared that Withey during the negotiations for the assignment of the contract stated to the plaintiffs that this amount would be due on the completion of the work. This statement was immediately communicated to one of the defendants, who said that he did not know how the fact might be, that his brother knew more about the matter than he did, and referred the plaintiffs to him for information. One of the defendants remarked that he could not then tell how the account stood, as the books were at the store ; and subse- quently the defendants refused to give such information on the subject as the plaintiffs desired. The plaintiffs now proceeded to finish the house at considerable outlay ; the defendants being present very frequently while the work was going on, but giving no further information concerning the state of the account with Withey, though it also appeared that the defendant supposed they were somewhat indebted to him. It was contended for the plaintiffs that the defendants were now estopped to deny their liability to them ; but the court ruled otherwise.* ^ 25 Conn. 250. connts'with 'Withey, is tantamoant to * In delivering the opinion of the standing by and suffering an honest pur- court, Hinman, J. said : *The plain- chaser to expend his money in the pur- tiffs' claim is founded upon the idea chase of property to which the party that the defendants' conduct in suffering thus consenting to its sale has a claim the plaintiffs to go on and expend their of which he gives no notice ; and as the money in completing Withey's contract defendants not only omitted to give any under the false impression that when information on the subject when first completed there would be enough due applied to for the pur]>ose, but subse- upon it to reimburse them for such ex- quently expressly refused to give any, penditures, and would also be enough to on the ground that they might be pay them for a portion of Withey's in- blamed by Withey, it is asked whether debtedness to them in connection with the express refusal to give any infor- the declarations of the defendants, after mation is not to have the same effect they were informed that Withey had that the silence of a jmrty will have said that $1,500 would be due when the upon his rights to property, if he is house was finished, and their refusal to standing by when it is sold to a bona give information in respect to their ac- fide purchaser ; and whether it makes SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 698 The ^estoppel contended for failed again in the case of Cor- ning V. Troy Iron Factory.^ The action was brought to restrain any difference in the case that a reason we think the facts found by the corn- was given for such refusal. No one mittee are not sufficient to entitle the doubts that by refusing or neglecting to plaintiffs to relief. There is no actual give notice of his rights to property, fraud found against the defendants ; and where it has the effect to mislead a pur- although certain facts and cii-cumstances chaser, by inducing him to believe that are found which might have more or no such rights exist, a party may pre- less weight as links in a chain of evi- clude himself from afterwards asserting dence going to show fraud, yet they are them. And the case, as we think, turns iu themselves of an inconclusive char- upon the application of this and other acter, and iu connection with other well-settled principles, rather than upon facts in the case are wholly insufficient any difficult or doubtful principle itself, to induce us to believe that the defend- \Ve do not assent, however, to the notion ants intended to mislead the plaintiffs, that a refusal to speak, with a reason The circumstance on which the plain- given for it, is the same thing as silent tiffs' counsel appear to place the most acquiescence in what another does or reliance is the fact that the defendants says. A< party cannot be misled unless stood by and saw the plaintiffs expend something is done or omitted which has their money in the completion of the the effect to mislead him. . . . The building without informing them that doctrine in regard to estopi)els in pais is there would be nothing due on the more liberal and less entirely governed contract when the house was finished, by technical rules than estoppels by If this fact was unexplained, it might deed or record. The object is to pre- perhaps fairly be inferred from it that vent fraud, not to produce it by en- the defendants intended, by means of trapping a party ; . . . and where the the plaintiffs' materials and labor u))on representation or concealment is not the building, to reimburse themselves wilfully fraudulent, or is not attended for their overpayments to Withey ; with such gross negligence of the rights and if such was their object, it would of others as to be tantamoimt thereto, be a fraud which would subject them the party ought not to be estopped, in this application. But the case finds Parker v. Barker, 2 Met. 423 ; Cady v. that Withey infoimed the defendants Dyer, 20 Conn. 563. [I^ee post, pp. that he had secured the plaintiffs for 612, 632.] . . . We know of no prin- completing his agreement ; and if this ciple that requires that the evidence of information was believed, and we can- title should be disclosed ; or that an ac- not say the defendants had any reason count should be rendered where, as in to disbelieve it, it entirely changes the this case, the interest of another may character of the defendants' acts, by depend upon the state of the account, showing that they, as well as the plain- so long as nothing is done to mislead, tiffs, were misled, and were acting un- it might be prejudicial to the right der a mistaken impres.sion induced by claimed, if the party was bound to go the unreliable statements of Withey. into details respecting it. The true Besides, the defendants were not en- question must be whether anything was tirely silent in acquiescing in the plain - intentionally, or at least by gross negli- tiffs' work upon th6 house j and we gence, concealed which had the effect think, under the circumstances, that it to mislead. Tested by these principles, can hardly be said that the plainti£Ea J 40 N. Y. 191. 88 694 ESTOPPEL IN PAIS. [CHAP. XVIH. the defendants from diverting the water of a stream running along the land of the plaintififs, and to compel the defendants to restore the water to its natural channel. It appeared that one Defreest, under whom the plaintiffs claimed, while owning and using a water privilege on the stream in question had assented to the erection by the defendants of works and dams on land leased by him to the defendants, by which the waters of the stream were diverted, and urged the completion of the works in- tended for this purpose, and expressed his fear that the defend- ants had not the means to complete them. Defreest wished the completion of the works from an expectation that the result would be a large increase in population, which would raise the value of his land ; and the claim of the defendants to the use of the water so diverted was advei-se to Defreest. It was held that the plaintiffs were not estopped. The court said that the an- swer to the position that the plaintiffs were estopped was that the defendants were in full possession and control of the creek and land under the lease, and that during the continuance of the lease Defreest had no right to object to any use of the stream by the defendants except such as worked an injury to the rever- sion ; and this the diversion during that period could not have done. The defendants further knew at the time that upon the expiration of the lease their right to divert the water would cease, and there was no pretence of any other right except under the lease ; and the defendants were not therefore in any sense misled or deceived in regard to the right of diversion by any- thing done bv Defreest. In like manner, it is settled law that standing by in silence will not bar a man from asserting a title of record in the public registry or other like of&ce, so long as no act is done to mislead the other party; there is no duty to speak in such a case.* in perfonning this work acted with to Jieir own imprudence, for which the prudence and caution which most obviously the defendants are not re- men would have exercised. They were sponsible.' probably more easily misled than they ^ Rector v. Board of Improvement, otherwise would have been, in the 60 Ark. 116, 128; Mason v. Philbrook, hope of obtaining payment of some 70 Maine, 57 ; Hice v. Dewey, 54 Barb, portion of Witliey's indebtedness to 455 ; Mayo v. Cartwright, 80 Ark. 407 ; them ; and so far as they acted under Sulphine v. Daubar, 55 Miss. 255 ; any such inducement it is chaigeable Kingman v. Graham, 51 Wis. 282; 8£CT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 695 Thus, a patentee is not bound to warn others whom he may see buying an article which is an infringement on his patent ; and this even when he urges the persons to buy his own article in preference as something better.^ And of course there can be no duty to speak without a knowledge of the existence of one's own rights * or of the action about to be taken.* Nor can pure silence (i. a silence without fraud) operate as an estoppel to assert one's rights over property when the party supposed to be estopped was at the time in possession, for possession is notice.^ If it be a case of property sold, the person assuming the right to sell should ordinarily at least have the property in hand.^ These and many other cases to the same effect proceed upon the ground, of course, that the silence of the party supposed to be estopped to assert his rights was no breach of duty to the per- son who asiserted the estoppel. The latter had not in contem- plation of law been misled by the former's silence. It follows that it is not enough to raise an estoppel that there was an op^ portunity to speak which was not embraced ; there must have been an imperative duty to speak.* Nor is any duty generated Enouff V, Thompson, 16 Penn. St. they did know it, but if they did not, 857; Markhamv. O'Connor, 52 Ga. 183. I cannot find anything from which we In the last case and in Kingman v. ought to draw the conclusion that the Graham it is suggested that there may plaintiff had reason {o suppose that they be a duty to speak notwithstanding the did not.' But the last suggestion is record if the silent party were apprised dangerous. Can it be true that the per- of the intended action ; but that view, son to be estopped must have known assuming that the case is one of pure that the other was ignorant of the real silence, is inconsistent with the cases state of things ? Lord Justice Bowen generally. put the case Uiis way : * Thero certainly ^ Proctor V. Bennis, 86 Ch. D. 740, was no representation made by Proctor C. A. Cotton, L. J^ : ' The right of the to the effect that he would not enforce his patentee does not depend on the defend- rights or that he had got no rights as ant having notice [the case shows that against these defendants; nor was there, this means warning from the patentee] in my opinion, any conduct which that what he is doing is an infringe- amounted to such a representation.' ment. If what he is doing is in fact an ' Bringard v, Stellwagen, 41 Mich, infringement, his having acted bona fide 54. and honestly will not protect him from * Hays v. Reger, 102 Ind. 524. an injunction.' The case, however, was * Scates v. King, 110 111. 456. See not put by his lordship on the ground Bigelow, Fraud, 293. that the patentee's title was on record, * Howlnnd v, Woodniff, 60 N. Y. 78 but on the ground that the defendants (two judges dissenting), knew of the plaintifTs patent * In my • George v Swafford, 75 Iowa, 491 ; opinion,' said he, ' it must be taken that Allen v 8haw, 61 N. H. 95 ; New York 696 ESTOPPEL IN PAIS. [CHAf- XVTII. by the mere fact that a man is aware that some oue may act to his prejudice if the true state of things is not disclosed. To use an apt illustration of one of the judges, a man may become ap- prised of the fact that his name has been forged to a negotiable iitstrument, and so become aware that some one may be led to purchase the paper by supposing the signature to be genuine, and yet he is not bound to proceed against the forger or to take any steps to protect the interests of others whose claims he may know nothing of ^ So long as he is not brought into contact with the person about to act, and does not know who that per- son may be, he is under no obligation to seek him out, or to stop a transaction which is not due to his own conduct, as the natural and obvious result of it' If the party is present at the time of the transaction, it may^ be necessary for him to speak if speak- ing would probably prevent the action about to be taken ; ^ if absent, his silence (or other conduct) must at least be of a nature to have an obvious and direct tendency to ca%bse the omission or the step taken.^ Only thus can a duty to speak arise.^ Of Rubber Co. v. Rotbery, 107 N. Y. 310, deraon v. Hubble, 9S Ind. 570, 678, 316 ; Perry v. Dow, 59 Yt. 61 ; R«ctor See McKenzie v. British Linen Co., 6 v. Board of Improvement, 50 Ark. 116, App. Cas. 82 ; post, p. 633, note. 128, 131, in regard to such duty in case * But the mere fact of being present of assessments made for the improve- and hearing a conversation between ments to a person's *property. others may not create the duty to speak. 1 Yiele v. Judson, 82 N. Y. 82, Perry v. Dow, 59 Yt- 61. Nor will the Finch, J. See McKenzie v. British mere fact that a husband, to his wife's Linen Co., 6 App. Cas. 82 ; Leather knowledge, is dealing in articles as his Manuf. Bank v. Morgan, 117 U. S. 96 ; own which belong to his wife, estop the People V. Bank of North America, 76 wife to claim them against a purchaser N. Y. 548, 562 ; post, p. 633, note. who buys them innocently as the hus- * Bramble v. Kingsbury, 39 Ark. band's property. Green r. Walker, 78 181, holding that knowledge by an Wis. 548. owner of land that one is about to buy * Besides the examples already given it from another does not impose upon see Watson v. Mcl^ren, 19 Wend. 692, the owner the duty of seeking out that and Weyh v. Boylan, 85 N. Y. 894, one and advising him not to buy. See 897, where it is held that if an assignee Sullivan v. Davis, 29 Kans. 28, holding take a chose in action by assignment that a land-owner is not estopped, by with the debtor's assent, though that be knowing that a lithographed map show- indicated merely by his standing by in ing subdivisions of his land into blocks silence, the debtor will be estopped to is in circulation, to deny the validity of impeach the transaction, such subdivisions. » See Anderson v. Hubble, 98 Ind. Of course contact or presence of the 670. party to be estopped is not necessary ; « Further, concerning the duty to there may still be a duty to speak. An- speak, see WoodhoU v. Rosenthal, 61 SECT. II.] BSTOPPEL BY CONDUCT : EQIHTABLE ESTOPPEL. 697 course when the act in question is a single momentary act, such as a trespass, seeing it committed without raising an objection at the time cannot estop the injured party from suing therefor.^ Only parties and their privies are bound by the representa- tion, and only those whom the representation is made to or in- tended to influence and their privies may take advantage of the estoppel.* If the act was inter alios, there can be no estoppel * This is well shown by the case of Eegina v. Ambergate Ey. Co. That was a mandamus to compel the defendants to proceed with the building of their railway. The reply was that their capital stock had not been subscribed and could not be obtained, and that they were forbidden by statute to exercise their powers in the mean time. To this the answer was made by way of estoppel that the defendants ought not to be admitted to make this defence because the company had acted under the compul- sory clauses of their charter in another part of the line where an arbitration had taken place in the form prescribed by the statute. But the court observed that this wets res inter alios acta, and could not operate as an estoppel between the prosecu- tors and the defendants.^ N. Y. 882 ; Campbell v. Birch, 60 N. Y. 167 ; "Walker v. Walker, 9 WaU. 748 ; 214 ; Hodges r. Spicer, 79 N. Car. 223 ; Caldwell v. Hart, 67 Miss. 596; Hopple Parker v. Banks, ib. 480 ; Mihills v. Hippie, 83 Ohio St. 116 ; Sanders 17. Manuf. Co. v. Camp, 49 Wis. 180. Robertson, 57 Ala. 465 (a suggestion Cases of sUence in the waiver of known only in this case) ; Townsend Bank v. rights will be considered in ch. 20. Todd, 47 C^nu. 190 ; Kinney v. Whiton, Such do not stand upon the ignorance 44 Conn. 262 ; Mayenborg v, Haynes, of the party claiming the estoppel. 50 N. Y. 675 ; Morgan v, Spangler, 14 1 Terre Haute R. Co. o. Rodel, 89 Ohio St 102. The decision in Irvine Ind. 128, 188. v. Adams, 48 Wis. 468, may be doubted. ^ It will be seen that this estoppel is. The representation may of course be not mutual. The party to whom the made to or intended for more than one misrepresentation was made has an es- person. Pence v. Arbuckle, 22 Minn, toppel ; of course the other party, 417. Comp. Bigelow, Fraud, 89, 90. though bound, has nothing U}x>n which ^ On similar grounds the fraudulent to base an estoppel. See e. g. Shepherd acts of a company in the issuance of 9. Mny, 115 U. S. 505; Warren v, Spen- shares of its stock cannot bind those cer Water Co., 148 Mass. 9, 34. who had already bought shares, if they • Mowatt V. Castle Steel Co., 84 Ch. had nothing to do with the fraud. D. 58, 0. A. ; Regina v. Ambergnte Ry. Mowatt v. Castle Steel Co., 34 Ch. D. Co., 1 Kl. & B. 872 ; Myers v, Cronk, 58, C. A. Cotton, L. J. : 'A man cannot 118 N. Y. 608 ; Marine Bank v. Fiske, bind by his admission those who do not 71 N. Y. 8.')8 ; Monson v. Tripp, 81 claim under him but who, before the Maine, 24, 26 ; Moore v. Boyd, 74 Cal. admission, had acquired a right' 598 ESTOPPEL IN PAIS. [CHAP. XVIH. The rule of estoppel between parties covers, of course, the misrepresentations of agents, even agents of corporations,^ when made in the scope of their employment.^ Where an agency reaUy exists, the principal is estopped to deny the truth of the agent's statements, express or tacit, just as much as if he had himself made them,' subject to the same limitations that would prevail in that case. Thus a county * or a city * or other mu- nicipality may be estopped by conduct of its agents. But an agent or a servant is not himself estopped when acting by direction of his principal unless his own conduct was such as to estop him.^ Nor is a principal estopped to deny the author^ ity of an agent having limited powers by. any representations of the agent, if the principal has not authorized the agent to declare the extent of his powers.^ The misrepresentation of a trustee in respect of the trust estate, to one having notice that it is such, will not work an estoppel upon an innocent cestui que trust There is no case, 1 Brooke r. New York R. Co., 108 First National Bank, 102 Ind. 494, and Penu. St. 529 : Holden v. Phelps, 141 Mosea v. St. Louis Dock Co., 84 Mo. Mass. 456 ; Alabama R. Co. v. South 242, in regard to the acts of public offi- Alabama R. Co., 84 Ala. 570 ; Chicago cers. The mere relation of husband and V. Sexton, 115 111. 230 ; Bank of Ba- wife creates no agency in the husband, tavia V. Lake Erie R. C Cupp v. Campbell, 103 Ind. 213, also Rannels v. Gemer, 80 Mo. 474; 220; Behler v. Weybnm, 59 Ind. 143; Burke v. Adams, ib. 504 ; Seeman v. McMorris v. Webb, 17 S. Car. 558, 563; Springate, 67 Ind. 115 ; Stevens v. Kane County v. Herringtx)n, 50 IlL Palish, 29 Ind. 260 ; Shumaker v, 232 ; Schnell t^. Chicago, 38 III. 882 ; Johnson, 35 Ind. 83 ; Behler v, Wey- Davidson v. Young, ib. 146 ; Rogers bum, 59 Ind. 143; Bank of United v. Higgins, 48 111. 211 ; Schwartz v. States r. Leo, 13 Peters, 107; Dmry p. Saunders, 46 111. 18; Brown v. Coon, Foster, 2 Wall. 24; Glidden v. Strop- 36 III. 243 ; Miles v. Lingprman, 24 ler, 62 Penn. St. 400 ; Morrison v. Ind. 885 ; McCoon v. Smith, 3 Hill, Wilson, 13 Cal. 494 ; Rangeley v, 147 ; Schenck v. Stumpf, 6 Mo. App. Spring, 21 Maine, 130. 381 ; Steed v. Petty, 65 Texa-s 490, » 10 Cnsh. 276. 496 ; Warren v, Hearne, 82 Ala. 554; 3 As to the legal meaning of the Weathersbee v. Farrar, 97 N. Car. 106 ; SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 601 V. Chicago, just cited, a bill was filed to restrain the defendants from setting up their legal title to certain land. It appeared that this land had been sold to a party under whom the plaintiff claimed, by an administrator, for the purpose of raising money to educate one of the defendants, then fifteen years old, upon whom the title to the property had fallen by descent. The minor, it further appeared, had been desirous of being educated, and with her consent and that of her mother the land was offered for sale ; and the purchaser before buying consulted both the mother and daughter upon their wishes, and they expressed their consent to the sale. The land was thereupon sold for what was then deemed a fair price, and the proceeds were partly applied to the education of the minor, and partly invested in other land in her name but at the sole direction of the administrator. The court held that these facts were insuflBcient to work an estoppel upon the infant.^ In a case in Indiana ^ it appeared that an infant feme covert joined with her husband in conveying her land to a railroad company, by which it was afterwards conveyed without her knowledge to the defendant. About ten years after the feme's attaining majority, being still covert, she gave notice to the de- fendant of her intention to avoid the deed, and commenced an action to recover possession of the land. Some slight improve- ments had been made upon the land after the conveyance made by her; but of this fact she was ignorant. She had resided Towles V. Fisher, 77 N. Car. 437 ; make the conveyance. The rights ac- Hodges V. Powell, 96 N. Car. 64. See quii-ed by Newhall under a sale by the Galbraith v. Lunsford, supra, rejecting administrator with the consent of Mar- the need of fraud in the sense of intent garet [the minor] were certainly not to deceive. greater than if she had made the sale ^ Mr. Justice Lawrence, in deliver- herself and at the same time given her ing judgment, said : ' In the case at bar own deed for the land. Yet such a the infant made no false statement to sale and conveyance unaccompanied by the purchaser and perpetrated no fraud, false representations would have given She simply consented to the sale of the Newhall no legal or equitable title which land by the administrator. Now, if an Margaret would not be at liberty to dis- infant is not bound by the solemn and affirm. So far as the alleged equitable delil^rate consent manifested by her estoppel is based upon the consent given own conveyance of her land, we do not to the sale, the position of the appellant know by what process of reasoning it is clearly untenable.' can be made to appear that she is bound ^ Miles v, Lingerman, 24 Ind. 885. by her parol consent that another shall 602 ESTOPPEL IN PAIS. [CHAP. XVIH, vithin four miles of the land for two years after arriving at age, and within ten miles of it down to the time of the trial. It was held that she was not estopped to claim the laud. It had been insisted, the court observed, that the deed of an infant could not be avoided in the hands of a subsequent grantee who had pur- chased without notice of the infancy of the original grantor. The position could only be sUvStained upon the doctrine of estoppel, for the grantor could convey no better title than he had ; and some act must be done, or there must be some omission by the minor after reaching majority, resulting in an injury which would i-ender the avoidance of the conveyance a fraud upon the person in possession. Such was not the present case. This doctrine is also maintained by Glidden v. Strupler.^ In that case a married woman had with her husband executed an invalid agreement to convey her reail estate. She received one yearns interest and a small part of the purchase-money. Posses- sion was taken under the agreement, and improvements made with her knowledge and tacit encouragement ; but no express fraud or act tending to mislead was committed^ And the court held that these facts did not raise an estoppel against the feme to claim the land.* In a recent case in the Supreme Court of the United States ^ it was held that there was no estoppel upon a married woman where she had with her husband signed an instrument meant for a mortgage of her separate estate, but with blanks left for the mortgagee's name and the amount for which it was to be given, which were afterwards filled and the in- strument given by the husband to a bona fide lender of money without knowledge of the facts. In cases of fraud separable from contract, however, whether by concealment or active conduct, the current of authority (in op- position to the doctrine in Massachusetts, above stated) is to the efiect that a married woman may estop herself to deny the truth 1 62 Penn. St 400. See also Rum- • See Grim's Appeal, 105 Penti. St. felt V. Cletnens, 46 Penn. St. 455. 375, 385 ; Keen v. Colemnn, 39 Prtin. 3 See McMorris v. Webb, 17 S. Car. St. 299 ; Klein v. Calilwell, 91 Pfun. 558, where mere silence on the part of a St 140; Wilt v, Welsh, 6 Watts, 9 ; married woman while her husband was Penrose v. Cnrren, 8 Rawle, 351. sell in (( her land was held to raise no es- * Drary v, Foster, 2 Wall. 24. toppel against her. BBGT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 603 of her representation,^ or of misleading silence on her part.' In the case first cited it appeared that a contract had been made for the erection of a building by the husband upon the land of his wife, with her knowledge and approbation. Tliough knowing what was going on, she did not disclose her interest, or do anything to prevent the work ; and the court now held that she was estopped to set up her rights in defence of an action to enforce a mechanics' lien on the building. In Con- nolly V. Branstler^ it appeared that the wife at a public sale of the land of her husband announced to the bidders that she would not claim dower against any person who should purchase the premises. It was now held that she was estopped to set up her claim in favor of one who had bought the land on the faith of her declaration. In Drake v. Glover^ the jury had been charged that if the defendant, a feme covert, was present at a sale of her property by one assuming to act as her trustee, and assented to the sale, she was estopped to deny the trustee's au- 1 Carpenter v. Carpenter, 10 C. £. courts of eqnitj. Dotterer v. Pike, Green, 1 94 ; Weathersbee v, Farrar, 97 60 Ga. 29 ; Iverson v. Saulsbnry, 66 N. Car. 106, 111; Towlesv. FUher, 77 Ga. 724. In Patterson v. Law.ence, K. Car. 437 ; Patterson v. Lawrence, 90 supra (as in one or two other eases), a lU. 174; Oglesby Coal Co. r. Pasco, 79 married woman was deemed estopped III. 164 ; Schwartz v. Saunders, 46 111. by her fraud even in a case of contract ; lb ; Anderson v. Annstead, 69 111. 452 ; and this is a legitimate resnlt of the Siuith V. Armstrong, 24 Wis. 446 ; married women enabling acts of recent O'Dell V, Little, 82 Ky. 146 ; Heck r. times. See also Nixon v, Halley, 78 111. Fisher, 78 Ky. 643 ; Connolly v. Branst- 611; Reis v. Lawrence, 63 Cal. 129; ler, 3 Hush, 702; Wright v. Arnold, Rosenthal v. Mayhugh, 83 Ohio St. 155 14 B. Mon. 638; Davis v. Tingle, 8 (where it was held that a married woman B. Mon. 589 ; Rusk v. Fenton, 14 Bush, whose husband has been absent for seven 490 ; Davis v, Zimmerman, 40 Mich, years and unheard from may bind her- 24 ; Levy v. Gray, 56 Miss. 318 ; Read self by estoppel in pais). In regard to V, Hall, 57 N. H. 482 ; Dukes v. S[ian- representations concerning her eijuitable gler, 35 Ohio St. 119, 127 ; Meily v. separate estate it is clear that a married Butler, 26 Ohio St. 535 ; Fitzgerald woman may estop herself. Noel v, r. Turner, 48 Texas, 79 ; Ryan V. Maxey, Kinney, 106 N. Y. 74, 78; Saratoga ib. 192 : Flannagin v. Hambleton, 54 Bank o. Pruyn, 90 N. Y. 250, 255 ; Md. 222 ; Hendershot v. Henry, 63 Rannels v. Gemer, 80 Mo. 474. And Iowa, 744 ; Cupp v. Campbell, 103 Ind. generally under complete enabling acts. 213. 220 ; Powell's Appeal, 98 Penn. St. Levering v. Shockey, 100 Ind. 558. 403 ; Jones v. Kearney, 1 Dm. & War. < Smith v. Armstrong, 24 Wis. 44^ ; 134; V'anghan 0. Vandersteg^n, 2 Drew. Catherwood v. Watson, 65 lud. 576; 863 ; Wright v, Leonard, 8 Jnr. K. 8. Gray v. Crockett, 86 Kans. 66, 74. 415: In re Lush, L. R. 4 Ch. 591. > 8 Bush, 702. In Georgia the estoppel is allowed in * 30 Ala. 382. 604 ESTOPPEL IN PAIS. [CHAP. XVOT. thority ; and that if without being present she knew of the sale and did not object to it she was estopped to deny its validity. The court held the first charge correct, and the second incorrect ; and it was further said that in case the sale was made by the hus- band the silence must be fraudulent, and not the result of mari- tal restraint^ In McCullough v. Wilson ^ the wife joined the husband in procuring a third person to purchase an invalid mortgage of the wife's separate estate; and it was held that both parties were estopped to deny the validity of the mortgage. It is clear that an action cannot be maintained at common law on a contract made with a married woman, for falsely repre* senting herself to be sole at the time; the representation in such case not operating as an estoppel.^ Nor could an action ex delicto be maintained in such a case.^ And a similar doctrine ^ Wilks V. Kilpatrick, 1 Humph, effecting it and parcel of the same 54. transaction, the wife cannot be re- * 21 Penu. St. 4S6. sponsible and the husband sued for * Liverpool Association v. Fair- it together with the wife. If this were hurst, 9 Ex. 422 ; Cannam v. Farmer, allowed, it is obvious that the wife 8 Ex. 698 ; Wright v. Leonard, 11 C. B. would lose the protection which the N. 8. 2.58 ; Keen v. Coleman, 39 Penn. law gives her against contracts made by St 299 ; Keen v, Hartman, 48 Penn. St. her during coverture ; for there is not 497 ; Klein v. Caldwell, 91 Penh. St. a contract of any kind which a feme 140 ; Cupp V. Campbell, 103 Ind. 213, covert could make, whilst she knew 220. And see Reis v. Lawrence, 63 Cal. her husband to be alive, that could not 129. In the case firat cited, where a be treated as a fraud. For every such married woman had induced the plain- contract would involve in itself a fraud- tiffs to loan money to her upon a false ulent representation of her capacity to representation that she was a single sue. Accordingly it haa been held in woman, and to recover which she and the case cited and so much commented her husband were sued upon a proinis- upon during the ai>riiment (Cooper v. sory note given by her for the amount, Witham, 1 Lev. 247 ; s. c. 1 Sid. 875) the court by Pollock, C. B. said : * A that the wife could not be bound in feme covert is unquestionably incapable such a case. It is true that Twisden, of binding herself by a contract ; it is J. assigned another reason, viz. that altogether void, and no action will lie the wife having represented herself to against her husband or herself for the be sole and induced the plaintiff to breach of it. But she is unquestionably marry her, it was a felony in her, and responsible for all torts committed by so no action could lie till the felony her during coverture, and the husband was tried ; but it was said that if the must be joined as a defendant. They wife had been pardoned, by which that are liable, thersfore, for frauds committed objection was removed, yet it seemed by her on any person, as for any other the action would not lie, and the reason personal wrongs. But when the fraud was that it sounded in contract.' is directly connected with the contract * Ibid, with the wife, and is the means of SECT. II.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 605 prevails, by the weight of authority, in regard to the false repre- sentations of a minor concerning his age, though another has been induced to contract with him on the faith of them.^ It is clear also that an infant is not estopped by receiving during minority money from the sale of his lands from afterwards lay- ing claim to them, nor indeed by the act of his guardian in receiving the money unless acting under authority of law.* Indeed, cases are not wanting in which it is declared that the doctrine of estoppel in pais has no application whatever to in- fants.* The case of Brown v. McCune, just cited, was, however, simply the case of an infant who had falsely represented himself to be of age, and thereby obtained the goods for which the suit was brought. It was of course held that the action could not be sustained; it sounded in contract. In Ackley v. Dygert* it appeared that no one had been influenced by the representations of the infant ; and the case is therefore not an authority for the statement made in it that an infant can do no act which will work an estoppel upon him. The next case referred to^ is hardly an authority either for so broad a proposition ; for there the court observed that the facts upon which the estoppel of the infant was based had not been proved. In Norris v. Wait,® which is a direct authority against the estoppel, the court admits that if an infant be guilty of a fraud and be proceeded against ex delicto, he will be answerable.^ The authorities, on the other hand, are not few or obscure 1 Johnson v. Pye, 1 Sid. 268 ; s. c. 1 Lackman r. Wood, 25 Cal 1 47, 153 ; Keb. 918 ; Bartlett ». Wells, 1 Best & Norris v. . Wait, 2 Rich. 148. See Mc- S. 886 ; Baker v. Stone, 186 Mass. 406 Coon v. Smith, 8 Hill, 1.47; Montgomery (silence of infant) ; Merriam v. Gun- v. Gordon, 51 Ala. 877 (in the absence ningham, 11 Cush. 40 ; Alvey v. Reed, of fraud) ; McBeth v, Trabue, 69 Mo. 114 Ind. 148; Buchanan v. Hubbard, 642; Ferguson r. Bobo, 54 Miss. 121; 96 Ind. 1 ; Carpenter v. Carpenter, 45 Shivers v, Simmons, 64 Miss. 620 ; Up- Ind. 142; Price v. Jennings, 62 Ind. shaw v. Gibson, 58 Miss. 341; Sims v. Ill ; Wieland v. Kobick, 110 111. 16 ; Everhardt, 102 IT. S. 800. See Camp- Buriey v. Russell, 10 N. H. 184, ex- bell v. Laclede Gas Co., 84 Mo. 862, plaining Fitts v. Hall, 9 N. H. 441 ; 368. Conrad v. Lane, 26 Minn. 889. But * 83 Barb. 176. see Eilgore v. Jordan, 17 Tex. 341 ; ^ Lackman v. Wood, 26 Cal. 147. Schnell r. Chicago, 88 lU. 382, dictum. •'2 Rich. 148. » Gillespie v. Nabors, 59 Ala. 441. ^ Wood v. Vance, 1 Nott ft McC * Brown v. McCune, 6 Sandf. 224 ; 197. Ackley v. Dygert, 88 Barb. 176, 198 ; 606 ESTOPPEL IN PAIS. [CHAP. rVHI. which maintain the proposition that if an infant of years of dis- cretion knowing that he has a right to an estate encourage a pur- chaser to buy it of another without asserting any claim to it, the purchaser will hold it against the infant^ It appears to be the better doctrine with these authorities that both infants (of years of discretion) and married women may be estopped to set up a claim to their property against a purchaser. Both are liable when properly sued for their torts in an action which does not seek the enforcement of a contract or demand damages for repudiat- ing, or for fraudulently inducing the plaintiff to make, a contract; and in an action for a fraudulent representation of title whereby the plaintiff has been induced to expend money for the purchase of property belonging in reality to the defendant the measure of damages must of course be the sum paid. Now, to prevent a circuity of action (which indeed is the ground of many estop- pels, if not also of this very class of equitable estoppels) it is but right on analogy that the infant or feme should be rebutted when proceeding to regain possession. Certainly this would seem proper when the party so proceeding has no other property with which to answer the purchaser for the deceit We do not say that the existence of an estoppel by conduct always de- pends upon the existence of a right of action for deceit ; but we apprehend that while there may be an estoppel without this right of action in some cases,' the estoppel always arises wh^^ the action of deceit would be maintainable. ^ Sngilen, Vendors, 743, 14th Eng. Aiasoe. v. King, 8 De G. Ai J. 68 ; Tele- ed. ; Overton v. Banister, 8 Hare, graph Co. v. Davenport, 97 U. S. 869 ; 603 ; Esron v. Nicholas, 1 De G. & S. Goodman v. Winter, 64 Ala. 410 ; Mer- 118; Hall v, Timmons, 2 Rich. Eq. ritt f. Home, 6 Ohio St. 807; Com- 120 ; Whittington v, Wright, 9 Ga. 23 ; monwealth v, Sherman, 18 Penn. St. Irwin V, Merrill, Dud. 72 ; Thompson v, 343, 346. The cases in chancery, it Sim])son, 2 Jones k L. 110; Brantley will he noticed, are more strongly in V. Wolf, 60 Miss. 420, 481 ; Ferguson favor of the estoppel than those at V. Bobo, 54 Miss. 121 ; Barham v, law. Tuberville, 1 Swan, 437 ; Galbraith v, * See Pickard p. Sears, 6 Ad. & E. Luusfortl, 87 Tenn. 89, modifying 469 ; Gr«gg ». Wells, 10 Ad. A E. 90 ; Barham v, Tuberville, and holding in- Niven v. Belknap, 2 Johns. 578. Cases tent to deceive to he unnecessary ; on of meiv silence would not according to which, seel Bigelow, Law of Fraud,* 638; high authority furnish ground for an 2 ih. 116. See also Stokeman v. Daw- action of deceit. Peek v. Gumey, son, 1 De G. 4S. 90 ; Wright v. Snow, L. B. 6 H. L. 877. 2 De G. & S. 321 ; Unity Joint Stock SECT. IL] estoppel BY CONDUCT : EQUITABLE ESTOPPEL. COT It is not satisfactory to say that what an infant cannot di- rectly do he cannot do indirectly. So long as that merely means that if an infant cannot bind himself by an express contract for the sale of his property, he cannot bind himself by any kind of contract, it is perfectly true ; but in the case put contract with the infant, express or other, is out of the question. The only contract is with another, to wit, the person assuming to act as vendor. The situation of the infant is that of one committing fraud, not of one making a contract, at least not necessarily of one making a contract. If there be a valid agency in/a<^ (a rare thing in the case of an infant), then there is a contract through the vendor with the infant as principal ; but it is taking liberty with the truth to say that there must be a legal agency in the mere act of the infant permitting the sale.^ An infant's conduct may result in what could not be done by any express attempt on the part of the infant to do by contract. He may, for ex- ample, commit a battery, and find his property levied upon and sold in consequence ; and there is good sense in saying that an infant who in express fraud (without an agency in fact) permits another to sell his property as the property of the vendor should be equally accountable for his misconduct. If this is so, the simplest way to effect the object is to estop the infant from setting up his title to the property.* That the doctrine of privity prevails here was determined in Wood V. Seely.* In this case one Shoemaker, under whom the 1 To talk of the existence of an deU, 71 Ind. 440; Lichtenberger v. agency and of conveying title in such Graham, 50 Ind. 288. That being true, cases is unnecessary to the fixing upon there can be no good reason why she the infant an estoppel. Estoppel to should not be able to estop herself by assert title arises independently of fraud. agency and of transfer of title, if it be ^ An infant is not permitted in equity not inconsistent with them. The in- to enjoy the proceeds of a sale of his fant does not lose his title in the sense property, and then repudiate the sale of haying conveyed it away ; he is only as irregular or void, any more than an Iwrred from asserting it. A purchaser adult. Goodman v. Winter, 64 Ala. from him without notice would prob- 410, 437 ; Commonwealth v. Sherman, ably get a gooil title. Comp. what has 18 Penn. St. 846. And this whether the been said as to estoppel by deed, ante, sale is by act of the infant or by au- pp. 413 et seq. See infra, p. 609. thority of law. Ibid. However, it is held, that a married » 32 N. Y. 106. See also Wortham woman may authorize her husband to v. Gurley, 75 Ala. 856 ; Mookeijee v. convey her real estate. Griffin v. Rus- Deb, L. R. 9 Ind. App. 147. 608 ESTOPPEL IN PAIS. [CHAP. XVIII. plaintiff claimed, had been induced by the defendant to pur- chase and pay the full value of certain land upon a representa- tion that the defendant had no interest in the land. It was now contended on behalf of the latter in support of a claim of interest in the land that the estoppel was personal, and that Shoemaker alone could avail himself of it ; but the court held otherwise.^ The doctrine is illustrated also in Parker v, Crittenden.^ In this case the plaintiff bought a hack in the possession of a third person, as belonging to him. The real owner was present, and assented to the sale. Subsequently it was attached as his in the hands of the plaintiff, who now brought replevin. The court held him entitled to recover. The defendants, it was remarked, by claiming through the owner under the attachment, were privies in estate with him and bound by the same estoppel • An illustration of estoppel by privity may also perhaps be seen in the case of Kinnear v. Mackey.^ In this case an officer was induced to make a levy upon and sale of a tenant's interest in a leasehold as free from all rights and claims of the landlord upon representations of the landlord that it was thus free. It was decided that the purchaser was entitled to the benefit of the estoppel as privy of the sheriff* ^ Denio, C. J. in delivering judg- and against the parties personaUy ; and xnent, said : ' I am of opinion, on the I see no reason why estoppels in pais contrary, that the plainti^i or'the owner should not be within the rule as they of the land under Shoemaker's title, clearly are within its principle. Cases holding under mesne conveyances from of dedication often rest upon the prin- him, is equally entitled to avail himself ciple of estoppels in pais ; it being con- of the equitable bar. In some of the sidered fraudulent on the part of one cases referred to relief was given to dedicating his land to public nses to the grantee of the party defrauded, retract, to the prejudice of parties who Such was the case of Town v. Need- have purchased on the faith of such ham, 3 Paige, 645. In Jones v. Powell, d(>dication. It has frequently been held 6 Johns. Ch. 194, where a right of that the estoppel attaches itself to the dower was relieved against on the laiid, and can be asserted on -behalf of ground that a collateral compensation the grantee of the immexliate purchaser.' had been made by the testamentary Hills v. Miller, 3 Paige, 254 ; Water- trustees of the husband, the party to town v. Cowen, 4 Paige, 510 ; Child v. whom the relief was adjudged was a Chappell, 9 N. Y. 246. grantee of the immediate purchaser. ^ 37 Conn. 148. Also in Interna- £.stoppels by record and by deed, as is tional Bank v. Bowen, 80 111. 541. well known, run in favor of and against ' 85 111. 96. the privies in estate of the immediate * Perhaps it would have been quite parties to the estoppel as well as for as accurate to say that the repreeeata- SECT. III.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 609 By analogy to the position heretofore taken concerning the relation of grantor and grantee in conveyances of real estate it would seem that a purchaser of goods is not a privy in estate or otherwise with his vendor so as to be affected by an estoppel in pais resting on the vendor in respect of the goods. Thus, if a person stand by and allow his goods to be sold as the goods of another to one who does not take possession, and the actual owner afterwards sell the same to another person for value and without notice df the previous transaction, the latter would be entitled to the goods against the first purchaser. The owner would simply be precluded from setting up title against the purchaser. It is not the office of an estoppel to pass a title. The title remains, but it cannot be asserted against the party who acted upon the false representation. With reference to others it may be asserted or conveyed ; and a purchaser not being a privy would not be estopped to assert title to the goods. This is cer- tainly true of a purchaser under an execution against the real owner.^ § 3. Knowledge of Facts by him against whom the Estoppel is alleged.'^ Estoppel arising in virtue of a misrepresentation is the con- verse of an action of deceit. The property or interest claimed by reason of the estoppel corresponds to the damages sought in the action of deceit ; and in order to make good the claim of estoppel, the same things, it should seem, are requisite that are tion was virtoally intended for the par- present section treats only of knowledge chaser ; he takes from the owner, not of the falsity of the representation iu the fh>m the sheriff. party to be estopped ; § 4 treats of the ^ Richards v. Johnston, 4 Harl. ft same subject in relation to the opposite N. 660 ; Bigelow's L. C. Torts, 438. party ; and § 5 inclndes all that bears ' In previous editions the subject of upon knowledge in the party to be es- knowledge of the facts in all its phases, topped in regard to the intention of the whether ir. regard to the party against other party, actual knowledge and pre- whom the estoppel is alleged, or against sumptive. Note to the 4th ed. the party alleging it, or in regard to the One cannot be barred of the right intention of the party alleging the es- to allege the Statute of Limitations by toppel, has been treated in this section ; knowledge of the facts and long in- bnt that has been thought to lead to con- action. Bartlett v, Kayder, 97 Ma fusion (Lowell, Transfer of Stock, p. 126, 866. note 8), and a change is now made. The 89 610 BSTOPPEL IN PAIS. [CHAP. XVin. necessary to the maintenance of the action mentioned.^ Now by the clear weight of authority, in which courts of equity, in recent times at least, agree with the courts of law, it is neces- sary to the recovery of damages in an action for misrepresenta- tion, by the current of authority, to show that the defendant made the representation (1) with actual knowledge of its falsity, or (2) recklessly, without knowing whether it was true or false, or (3) under circumstances in which, from his peculiar relation to the facts, he was bound to know the true state of things.' Taking these three phases of the scienter from the action of deceit, and transferring them to the subject of estoppel, attention for the present need be drawn particularly only to the third. The first of the three — actual knowledge of the falsity of the representation — is of course a perfectly clear and unquestioned case for an estoppel ; for there is the ' scienter ' pure and simple. And the same will be seen to be true, upon reflection, of the second ; to make a positive statement of fact is virtually to as- sert that one has knowledge upon which to base it, and this is to assert what one knows to be false if the assertion is made without knowledge whether it is true or false.* The third of the phases of the scienter (where the represen- 1 Freeman v. Cooke, 2 Ex. 654 ; Can it be necessary to an estoppel, Swan V. North British Co., 7 Hurl. & N. under the law of the scienter, that the 603, Martin, B. ; 8. c. in error, 2 HurL {Mtrty to be estopped should also know & C. 175 ; Bank of Ireland v, Evans* that the other party is acting in igno- Charities, 5 H. L. Cas. S89, Parke, B. ; ranee ? So it appears to have been sup- ante, p. 570, note S. posed by Lord Justice Cotton in Proctor * Among many other cases consult v. Bennis, 86 Ch. D. 740, 760, citing the following: Derry v. Peek, 14 App. Ramsden v. Dyson, L. R. 1 H. L. 129, Cas, 337, rev'g87 Ch. D. 541; Joliffe 140. But it may be doubted whether V. Baker, 11 Q. B. D. 255 ; Arkwright the passage quoted means that any such V. Newbold, 17 Ch. D. 801, 820 ; Reese knowledge is necessary. An auctioneer Silver Mining Co. v. Smith, L. R. 4 makes a false representation scienter ; H. L. 64 ; Redgrave v. Hurd, 20 Ch. D. must a buyer show that the auctioneer 1 ; Mahurln v. Harding, 28 N. H. 128 ; knew that the buyer was ignorant of Case V. Bonghton, 11 Wend. 106, 108 ; the facts? Evertson ». Miles, 6 Johns. 138 ; Carley • Evans v. Edmonds, 18 C. B. 777, 9. Wilkins, 6 Barb. 557 ; Bennett t^. 786 ; Phelps v. White, 7 L. R. Ir. 160, Judson, 21 N. Y. 138 ; Lobdell v, 170 ; Morse v. Dearborn, 109 Mass. Baker, 1 Met. 198, 201 ; 1 Story's Eq. 593, 595 ; Twitchell v. Bridge, 42 Vt. ' p. 209, 13th ed., note by the present 68; Bcebe v. Knapp, 28 Mich. 53; writer, where the subject is worked out Stone v, Covell, 29 Mich. 859 ; Preston in detail. Some cotirts dispense with v, Mann, 25 Conn. 118. proof of knowledge in any form. SECT, ni.] ESTOPPEL BY CONDUCT t EQUITABLE ESTOPPEL. 611 tation, though believed to be true by the party who made it, was made under circumstances showing that he ought to have known that it was false), though sufficient in regard to knowl- edge,^ is more difficult to handle; for the circumstances which should fix knowledge must be peculiar, special, and strong, and may be influenced towards strengthening or taking away the grounds of the estoppel in many ways. Generally speaking, it is often said that a man is presumed to know the truth in regard to facts within his own special means of knowledge.* More defi- nitely, the rule has been thus stated : What a person is bound to know has regard to his particular means of knowledge and to the nature of the representation, and is then subject to the test of the knowledge which a man, laying that attention which every man owes to his neighbor in making a representation, would have acquired in the particular case by the use of such means.' That is perhaps as definite as any general proposition cover- ing the subject can be made. In accordance with it, or some- thing like it, directors of a corporation are held to be bound to know the proceedings of the body in ordinary cases.* The gen- eral proposition may also probably be deemed sufficient to cover cases of implied warranties, e. g. the certification of checks and the like cases considered in the chapter on Commercial Paper* and also in sales ;^ for these too seem t9 rest upon the ground of presumed knowledge in the warrantor.^ ^ See Leather Mannf. Bank v. Mor- N. J. Eq. 549 ; Leather Manuf. Bank gan, 117 U.S. 96; Weinsteinv. National t^. Morgan, 117 U. S. 96; Stone v. Bank, 69 Texas, S8 ; Harlow v. Mar- Great Western Oil Co., 41 111. 86 ; qnette R. Co., 41 Mich. 886 ; Payment Simpson v. Moore, 5 Ijea, 872 ; Mcln- V, Church, 38 Mich. 776 ; Coleman v, tire v. Yates, 104 111. 49 ; Hillock v, Pearce, 26 Minn. 128 ; Madison Co. o. Traders' Ins. Co., 54 Mich. 581. Paxton, 57 Miss. 701 ; Mutual Ins. Co. » Palles, C. B. in Doyle v, Hort, 4 V, Norris, 31 N. J. Eq. 588, 685 ; L. R. Ir. Ex. D. 661, 670. Davenport R. Co. ». Davenport Gas * Stone r. Great Western Oil Co., 41 Co., 43 Iowa, 801 ; Wright v. Newton, 111. 85. 130 Mass. 562 ; Stone 9. Great Western * Ante, p. 499. Oil Co., 41 ni. 85 ; Greene r. Smith, 57 • See Mclntire v. Yates, 104 111. 49. Vt. 268 ; Louks r. Kenniaton, 60 Vt. ' Price v, Ncal, 8 Burr. 1854 ; ante, 116. p. 481 ; 1 Story's Equity, pp. 210, 890, ^ Jarrett r. Kennedy, 6 C. B. 319, notes, ISth ed. It would seem to cover 822 ; Doyle v, Hort, 4 L. R. Ir. Ex. D. ordinary cases of attempts to set up 661, 670; Morse v. Dearborn, 109 Mass. defences to notes and other contracts 598 ; Midland R Co. v. Hitchcock, 87 which the maker has represented to be 612 ESTOPPEL IN PAIS. [CHAP. ZYni. Again, the question often arises whether negligence in general, touching the matter of knowledge, can supply the requirement of the rule of knowledge. Of knowledge, we say, for it is to be noticed that questions of the effect of negligence may arise in other relations of estoppel by conduct,^ as in regard to the party's intention that his representation shall be acted npon,^ and in regard to the injury to be sustained by acting upon it' But in regard to the connection of negligence with a party's knowledge, it is not quite clear whether negligence, apart from such cases as knowledge implied by reason of the special rela- tion of the party to the facts, will take the place of knowledge. It has been suggested by a learned judge that where the alleged ignorance involves gross culpability, there should be a limit to the facility with which a party, whose words or conduct have misled another to the latter's injury, should be permitted to qualify his responsibility by pleading- his own fault* But the learned judge did not undertake to define the principle, content- ing himself with saying that, * suitably restricted, the principle of which we have given an intimation unquestionably exists.' ^ It should be added that cases of this kind should not be con- fused with the question of estoppel by negligence where there is no communication between the parties. As has been intimated already, that is a very different matter.® A few cases touching negligence in regard to knowledge of facts misrepresented will serve to throw some light upon this good to one purchasing in reliance * Storrs, J. in Preston v. Mann, 25 thereon. See Simpson v. Moore, 5 Lea, Conn. 118, 129. 372. But see Allen v. Frazer, 85 Ind. ^ Whitaker v. Williams, 20 Conn. 288 ; Eoona v. Davis, 84 Ind. 887, 98, 104, was referred to. See also Slim 889. V. Croucher, 1 De G. F. k J. 618 ; .s. c. ^ To speak of a representation as 2 Oiff. 87 ; Coventry v» Great Eastern made 'negligently* is not a commend- Ry. Co., 11 Q. B. D. 776, C. A. ; Vag- able use of language. The meaning is liano v. Bank of England, 23 Q. B. D. not clear ; ' negligently ' in what re- 243, 249, I^ord Esher ; Boynton v. spect is the (question, — in regard to Bniley, 54 Vt. 92; Sutton o. Wood, 27 knowledge of the facts, in regard to the Minn. 362 ; Barstow v. Savage Mining effect of the representation upon the Co., 64 Cal. 388 ; Anderson v. Hubble, mind, in regard to the person who may 93 Ind. 570 ; 1 Story's Equity, p. 890, act upon it» or in what regard? The note, 13th ed.; Leather Manuf. Bank question is often important v, Morgan, 117 U. S. 96 ; post, p. 631, * Tracy v, Lincoln, 145 Mass. 857. note. ' See post, pp. 630 et seq. * See next chapter. SECT. III.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 618 obscure subject. In a case ^ in the English Court of Chancery it appeared that one Hudson, a builder, having finished several houses at Bromley, applied to the plaintiffs solicitors to know if any client of theirs would lend him money on a mortgage of the houses, informing them that the defendant Croucher, to whom the land belonged on which the houses had been erected, had agreed to grant him (Hudson) a lease of it for ninety-eight years and a half. The solicitors having read the agreement for a lease shown them by Hudson, requii^ed an assurance from Croucher that he would grant a lease according to the agree- ment Under these circumstances Hudson applied to Croucher and informed him of the matter, and Croucher thereupon wrote and sent by Hudson a letter to the solicitors in which he said that he was ' quite agreeable ' to grant the lease. The plaintiff then by his solicitors proceeded to prepare the same, and having done so notified Croucher' and Hudson and requested them to call and examine it. They did so and approved of it in writing. The lease was afterwards engrossed, and a counterpart executed, which was handed over to Croucher, the solicitora retaining the lease on behalf of the plaintiff. The plaintiff now loaned Hud- son various sums of money on the faith of the security, and Hudson executed an instrument purporting to be a mortgage, by way of underlease of the houses. Hudson subsequently became embarrassed and went abroad ; and the plaintiff shortly after- wards discovered that prior to all these transactions Croucher had granted a lease to Hudson for ninety-nine years, which had included all the premises comprised in the plaintiff's security, and that this lease had been assigned by Hudson for value to a stranger and was still subsisting. Croucher thus had no right to grant the second lease, and the mortgage was worthless. The plaintiff now filed a bill against Croucher and Hudson charging fraud, misrepresentation, and concealment, and praying that Croucher might be ordered to repay to the plaintiff the sums loaned, with interest Croucher denied the charges of fraud, misrepresentation, and concealment, and stated in defence to the suit that at the time of granting the lease comprised in the plaintiff's security he had foi^otten the grant to Hudson of 1 Slim o. Croucher, 1 De G. F. ft J. 618 ; 8. 0. 2 GifT. 87. 614 ESTOPPEL IN PAIS. [CHAP. XVni. tiie prior lease, and had in consequence inadvertently granted the second lease. The court held the plaintiif entitled to re* cover from Croucher, affirming the decree of the Vice-Chancellor on the ground that his forgetfulness was inexcusable.^ 1 2 Giff. 87. The Lord ChanceUor cently, just as much as the defendant in said : ' There has been a misrepresenta- this case, what was untrue ; and it was tion ; and if there had been moral fraud held that he was liable to make good in the case, it could hardly have been the loss that had arisen from his mis- disputed that a court of equity would representation. I believe that every have had jurisdiction to inquire into it word which Sir William Grant uses in and to call upon the defendant to dis- that csms is applicable to this. ** it is close all that he knew, and give relief objected," he says, " that this is a de- from the consequences of the fraud, mand for damages ; also that this was Now, although there may not be moral not a wilful misrepresentation. As to fraud here, yet I think that the party the first point the demand is properly who has been injured has a right to re- made in equity ; and the Lord Chancel- lief. Mr. Lewis, in a very able argu- lor, in Evans v. Bicknell, 6 Yes. 174, ment, has cited a number of cases (Sains- declared that the case of Pasley p. Fi^ee- bury V. Jones, 5 Mylne & C. 1 ; Denton man, 8 T. R. 51, and all others of that o. Stewart, 1 Cox, 258 ; Greenaway v. class, were more fit for a court of equity Adams, 12 Yes. 895 ; Todd v. Gee, 17 than a court of law ; but his lordship Yes. 278, and other cases), in which he was clearly of opinion that at least there says that a contrary doctrine has been h a concurrent jurisdiction, and says : laid down in this court, but he has not ' It has occurred to me that that case cited one single case similar to this, upon the principles of many decisions in where it is held that equity will not this court might have been maintained give relief. I think that his authorities here ; for it is a very old head of equity may be divided into two classes, — one that if a representation is made to where there was only a general claim to another person, going to deal in a mat- damages which a court of equity at that ter of interest upon the &ith of that re- time could not have properly assessed ; presentation, the former shall make that and the other class where there was a representation good if he knows it to be breach of promise, not the misrepresen- false."* That is, you may undo the tation of a fact. But here there is the transaction, and you may replace the misrepresentation of a fact, and there is person to whom the representation is no difficulty at all in assessing the made as far as possible in the same amount of the loss, and in doing justice situation in which he was before the between the parties. I cannot distin- representation was made. Lord Kldon guish this case from the case of Bur- certainly does say, '*if he knows it to rowes V. Lock, 10 Yes. 470. There the be false." But the meaning of that defendant is called a trustee because he qualification of the proposition is, as I was a trustee, but the word is used understand the words, if he makes a merely to designate the person who misrepresentation as to what he ought took a part in the transaction. There to have known, and what he did at one was no fiduciary relation between the time know, although he alleges that at plaintiff and the trustee who made the the particular moment that he made misrepresentation. They were strangers the representation he had foi^tten it.' to each other, just as much as the plain- It so happens that in the case of Bur- tiff and the defendant are in this case ; rowes v. Lock, supra, the person who but the trustees stated and stated inno- made the representation set up the same SECT. lU.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 615 In the late case of Coventry v. Great Eastern By. Co.^ the de- fendants had negligently issued two delivery orders, at different times, in respect of the same consignment, but in such a way as to indicate that they related to different consignments. On both orders the party to whom they were given obtained advances from the plaintiffs. That party became insolvent, and suit was now brought to recover from the defendants the amount of such advances ; and the suit was upheld.^ Forgetfulness was allowed as a defence in the case of an infant in the Court of Appeals of New York.* In this case the parents of the defendant, Henrietta Carr, an infant, conveyed to her the premises in controversy. Ten or eleven years afterwards the parents executed a deed of the same premises to the plaintiff in trust. The plaintiff advanced large sums of money on this security, paying also an outstanding mortgage upon the land. Henrietta, then about sixteen years of age, signed her mother's' name to the deed at her mother's request She had forgotten at the time the conveyance to herself ; but after the plaintiff had made all his advances she recollected the deed. The action was defence as is now done by Mr. Croncher. of this kind but show, first, that the The Lord Chancellor now quotes again fact as represented is false ; secondly, the language of Sir William Grant in that the person making the representa- the case above cited : ' In this case the tion had a knowledge of a fact contrary plaintiff was going to deal with Cart- to it ? ' The Lord Chancellor says that Wright upon a matter of interest, and he does not find that this case has ever applied to the person best qualified to been questioned, and that he regards it give information, the trustee, to know as sound. Slim v. Crounher has lately what Cartwright was entitled to ; who been followed in Iowa and in Missouri told the plaintiff expressly that Cart- See Bullis v. Noble, 86 Iowa, 518, 521 ; Wright was entitled to £288, and had Kaley v. Williams, 73 Mo. 810. And an undoubted right to make an assign- see the language of Deady, J. in Orego- ment to that extent, knowing that he niaa Ry. Co. v. Oregon Ry. Co., 10 had not a right to make such an assign- Sawy. 464, 469, intimating that a per- ment, having previously agreed to give son should inform himself in regard to another person £10 per cent out of the facts he once knew, but which by lapse fund. There is, therefore, a concurrence of time or other circumstances have be* of all the circumstances which the Iiord come dim and confused in his mind. Chancellor (Lord Eldon in Evans v, ^ 11 Q. B. D. 776, C. A. Bicknell, 6 Yes. 174) thinks requisite ^ See also Seton v. Lafone, 19 Q. B. to raise the equity. The excuse alleged D. 68, C. A., affirming 18 Q. B. D. by the trustee is that though he had 139 ; post, chapter 19. But see Second received information of the facts he did National Bank v. Walbridge, 19 Ohio not at that time recollect it But what St. 419. can the plaintiff do to make out a caae ' Spencer v. Carr, 45 N. Y, 406. 616 ESTOPPEL IN PAIS. [CHAP. XVnL broagbt to bar Henrietta's claim, or to have the land sold and the plaintiff's advances repaid ; but the defendant prevailed. Before turning to illustrations of the subject of knowledge proper it is well to advert to a supposed difference between courts of equity and courts of law in regard to the question of knowledge. It has been suggested, and occasionally affirmed, that courts of equity do not insist upon knowledge as a condi- tion to the estoppel as strongly as do courts of law ;^ but this, it is apprehended, is a clear mistake, at least so far as the recog- ^ nized authorities are concerned. Misrepresentation is, it is true, a well-recognized ground in equity for the rescission of con- tracts, or for injunction, though the representation was made in the belief that it was true; but innocent misrepresentation is admitted at law also as a defence in contract.^ Again, courts of equity are in accord with courts of law in regard to suits for ' damages on account of misrepresentation. Courts of equity of the highest authority have spoken clearly in regard to the ac* tion of deceit, declaring that to enable a man to recover damages he must establish the scienter in one of the three senses above stated ; * and the property, as has already been observed, which the party claiming the benefit of the estoppel seeks to hold rep- resents the damage, or rather he keeps the property as answering to the result of a suit for damages. Indeed, when the more re- cent cases in equity come to be examined, it will be found that there are very few decisions, not affected by special facts, which favor any great difference between the rules at law and in equity upon the subject;^ the supposed difference being traceable ^ 2 Pomeroy, Equity, §§ SOS, 809. upon misrepresentatioD, thoagh inno- See Strosser v. Fort Wayne, 100 Ind. cent, is consistent with the rale concern- 443, 447. ing the scienter in deceit, as has l^n 5* See 1 Bigelow, Frand, 410, 412. shown in recent cases of high authority. ■Supra, p. 610, and cases there For though the representation may have cited. But there is reason to regret heen innocent when made, and not a that want of reasonahle grounds of he- ground of action for damages, it be- lief should not be enougli, in deceit and comes a fraud in the party making it to in estoppel. insist upon its performance after notice < See Newbigging w. Adam, 84 Ch. has been brought to him of its falsity ; D. 582, 692, Bowen, L. J. now at all events he is affected with Even the rule in equity that a con- knowledge, and the twienter is made out, tract may be rescinded or a suit upon it for the ]>urpoRes of the recission, the de- resisted or enjoined if it was founded fence or the injunction. Arkwright «• SECT, m.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 617 probably to the prominence of the rule of rescission in equity for innocent misrepresentation. At all events, courts of equity have not as yet professed to depart from the rule of courts of law in regard to the matter of knowledge in estoppels by misrepresentation. Aside, then, from cases falling under one of the three phases of knowledge above mentioned, and the possible case of a man's attempting to take advantage of an innocent misrepresentation of his after notice of its falsity,^ it will in all courts be fatal to the supposed estoppel claimed that the representation was made in ignorance, under mistake;' sometimes even though this Newbold, 17 Ch. D. 801, 820, C. A.; Kelly, 64 Ala, 888, 891; Prickett v. Redgrave v, Hurd, 20 Ch. D. 1, C. A. ; Sibert, 75 Ala. 815, 819. But it wiU 1 Stoiy's Equity, p. 210, note, 13th be found in most of the cases that the ed. That is, the party cannot make language, however broad, as in the last a benefit out of his own (now) wrongful two cases, has been used of situations act. The case would be the same if it above considered ; to wit, (1) where the were a question of estoppel against the party assumed to know what he did not party. There, in the same way, is the know, or (2) where he was bound to scienter. This will explain such cases know the facts, or (8) where he is as Hendricks v. Kelly, 64 Ala. 888, 891, endeavoring to enforce a contract or and Pnckett v. Sibert, 75 Ala. 815, other demand after knowledge brought 819. But the case of benefit sought to home to him, before or in the suit, that be enfoi*ced by the party to be estopped the same was founded upon a false is not the ordinary case of estoppel by though at the time innocent represents- conduct ; in the typical case the party tion. All such cases fall within the to be estopped has lost a benefit or right rule of the scienter, which he had before the transaction ; Still, it must be admitted that the he is not seeking to gain something law in some of the states disijcnses under and by virtne of the transaction altogether with the need of proving any in question. See e. g. Pickard v. Sears, scienter in actions for deceit ; and hence Hence it is not a fraud for him now to proof of any scienter would be unneces- say that he did not know (and was not sary to the estoppel. Putnam v. Tyler, bound to know) the facts — whether at 117 Penn. St. 570, 586. law or in equity. ^ The case would then be that T^ The courts of some of the statss, bow- ferred to in the note supra, ever, have gone a long way towards * For various illustrations see Blake eliminating, and perhaps have elimi- Crasher Co. v. New Haven, 46 Conn, nated, the scienter altogether. See Put- 478 ; Clinton v, Haddam, 50 Conn. 84; nam v. Tyler, 117 Penn. St 570, Gray v. Agnew, 95 111. 815 ; Follansbee 586 ; Miller's Appeal, 84 Penn. St. 891; o. Parker, 70 111. 11 ; Marion Boad Co. Woodward ». Tudor, 81* Penn. St. v. McClure, 66 Ind. 468 ; Van Horn v, 882 ; Paul v. Squibb, 2 Jones, 290 ; Overman, 75 Iowa, 421 ; Decorah Mill Commonwealth v. Moltz, 13 Sei^. k R. Co. v. Greer, 49 Iowa, 490; Hager v. 806 ; Beaupland v. McKeen, 4 Casey, Burlington, 42 Iowa, 661 ; Cannon v, 181 ; Rice v. Bunce, 49 Mo. 281 ; Hart Home Ins. Co., 58 Wis. 585, 597 ; Tay- V. Giles, 67 Mo. 175; St. Louis R. Co. lor v, Nashville R. Co., S6 Tenn. 228, V. Larued, 103 lU. 298; Hendricks v. 245; Boynton v, Braley, 54 Vt. 92; 618 ESTOPPEL IN PAIS. [CHAP. XVIII. mistake be one of law, as in regard to property exempt from taxation.^ The subject may be illustrated by cases relating to mistake in the supposed settlement of boundaries between estates. In the case of Liverpool Wharf v. Prescott^ the plaintiffs brought a writ of entry to recover a narrow strip of land in Boston. It appeared that a line had been agreed upon between the plain- tiffs and the defendants about twenty years before the com- mencement of the action, and had been mutually adopted as the correct one and built upon accordingly with the acquiescence of the demandants, until some time in the years 1858 or 1860, when they claimed that the defendants' building was over their line, and notified them in writing, but made no other interrup- tion of the defendants' possession. In the court below the de- fendants asked the court to instruct the jury that if they found that the line of the building had been adopted as the true line with knowledge or with reason to believe that they were going to erect a building upon it and make expensive outlays, and that the defendants did then with the knowledge of the demand- ants adopt the line thus given, and relying upon it proceeded at once to make the erections and outlays contemplated, the demandants seeing and knowing it and standing by witliout making any objection or giving notice, they would now be bound by that line and estopped to deny that it was the true boundary. But the court declined to give this instruction, and told the jury that the facts wei'e not sufficient to estop the demandants ; and the judgment was affirmed on appeal.^ The Acton V, Dooley, 74 Mo. 68 ; Barke v, that it could be shown that the report Adams, 80 Mo. 604 ; Chicago Ry. Co. v. was made in mistake. See also Van Auditor-Gen., 63 Mich. 79 ; Van Ness Ness v. Hadsell, 64 Mich. 660. V. Hadsell, 64 Mich. 660 ; Buck v. Mil- « 7 Allen, 494 ; s. c. 4 Allen, 22. ford, 90 Ind. 291, 293; Pitcher o. Dove, » Mr. Justice Hoar now said : 'We 09 Ind. 175; Tillotson v. Mitchell, 111 are of opinion that it was rightly held 111. 618 ; Bull V. Rowe, 18 S. Car. 356 ; at the trial that there is no estoppel Douglass V. Craig, ih. 871 ; Wright v. under such circumstances. There is Newton, 130 Mass. 652; Breeze v, nothing in the case to show that there Brooks, 71 Cal. 169, 182. was any " standing by " and permitting 1 Charlestown v. County Commis- the expenses to be incurred without rionera, 109 Mass. 270. See Chicago notice, which was the case put in Ry. Co. V, Auditor-Gen., 68 Mich. 79, Thayer v. Bacon, 8 Allen, 168. The where an assessment was based upon the parties did not even undertake to fix a party's own public report. It was held doubtful line by agraement, but only to SECT. III.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 619 case was one of pure mistake, without knowledge of the true boundary.^ ' In another case ^ it appeared that certain parties, intending to establish the true line between their lands, agreed upon a boundary by parol, which was not in fact the true line. But they held possession in accordance with the conventional line ; and one of the parties being about to sell to the defendants, the other stated to the purchasers that the line agreed upon was coiTect, and that he did not claim beyond it. After the sale the purchasei's made improvements next to the conventional line with the knowledge of the adjoining owner, who was often present and repeatedly pointed out the line, without giving notice of any claim to the land. Having subsequently discov- ered the true line, and that it extended beyond the improve- ments, the court held him entitled to recover it.^ The principle upon which these cases proceed is that there must have been, when the incorrect line was acted upon, knowl- edge of the true boundary by the one party and ignorance of it by t}ie other, in order to estop the party from asserting it within point the true bonndary as fixed by the tenants' agent with a view to iufiaence deed. The authority of Tobnan v. Spar- their conduct, or that he bad knowl- hawk, 5 Met. 469, is therefore direct and edge of their intention to purchase, decisive. The case relied on by the ten- Nor does it appear that the tenants wiU ants (Kellogg v. Smith, 7 Gush. 875) is be injured by the fiats ; for if they wholly different. There the line in ques- purchased with warranty, they may be tion had been referred to as a fixed bound- indemnified. We do not, however, de- ary and adopted as such for more than a cide the case on these considerations, hundred years ; and the decision did not but on the ground that the demandant rest on the point of estoppel.' has acted fairly under a mistake and ^ Proctor V. Putnam Machine Co., thathe has made no declaration contrary 137 Mass. 159 ; Schraeder Mining Co. v. to his honest belief at the time or with Packer, 129 U. S. 688 ; Perkins v. Gay, any intention to deceive the tenants. 8 Serg. k R. 827, 381. And we think it clear that declarations * Brewer v, Boston & W. R. Co., 5 thus made do not operate in the nature Met. 478. of an estoppel. A party is not to be * * We must,' said Wilde, J. hi de- estopped to prove a legal title to his livering judgment, 'consider the decla- estate by any misrepresentation of its rations and admissions of the demand- locality made by mistake without fraud ant as having been made in good faith or intentional deception although an- and by mere mistake. And admissions other party may be induced thereby to thus made do not, we think, by law purchase an adjoining lot the title to operate by way of an estoppeL . . • which may prove defective, for he may Now, it does not expressly appear by require a warranty, and it would be the case stated that the declarations most unjust that a party should forfeit of the demandant were made to the his estate by a mere mistake.' 620 ESTOPPEL IN PAIS. [CHAP. XVni. the period of limitation ; and this though it majr have been in- tended that the incorrect line should be fixed upon as the true one and acted on accordingly.^ This is true, it is held, though the admission was in writing, provided the instrument did not operate as a conveyance.^ And the doctrine of estoppel by standing by and permitting one's propeity to be sold, or of wit- nessing a deed to it made by another, supposes the like state of facts.® But it would probably be admitted everywhere that a verbal agreement fully acted upon with knowledge would create an estoppel to dispute the bounds fixed upon> In many of the states, however, long acquiescence is accepted as a substitute for knowledge of the facts at the outset ; ^ and it is accordingly held of such cases that an estoppel may arise in 1 Illnstrations are nnmerous. See the case), it certainly is defective in Bamsden v. Dyson, L. R. 1 H. L. omitting the element of knowledge in 129, 140 ; Sheridan v. Barrett, 4 L. R. the party against whom the estoppel is Ir. 223 ; Perkins t;. Gay, 8 Serg. & R. claimed. The same is to be said of 827, 831 ; Schraeder Mining Co. v. Hughes v. Wheeler, 76 Oal. 280. The Packer, 129 U. S. 688, 699 ; Hass v. cases are exceptional and rest on pecul- Plautz, 66 Wis. 105, 111 ; Gove v. lar grounds where this element may be White, 20 Wis. 425 ; s. c. 28 Wis. 282 ; dispensed with. See Greene v, Sniitli, Corkhill o. Landers, 44 Barb. 218 ; 57 Y t. 268 ; Louks v. Eenniston, 50 Laverty 9. Moore, 32 Barb. 847 ; 8. c. Vt. 116 ; cases of boundaries in which 83 N. y. 658 ; Baynor v. Timeraon, 51 it was considered that the party es- Barb. 517 ; Smith v. McNamani, 4 topped ought to have known where the Lans. 169 ; Reed v. McCourt, 41 N. V. line was. 485 ; Reed v. Farr, 85 N. Y. 113 ; ^ Bradbury 9. Cony, 59 Maine, 494. Rutherford i;. Tracy, 48 Mo. 825 ; Lem- * Brown v. Tucker, 47 Ga. 485 ; mon V. Hartsook, 80 Mo. IS ; Acton Hale v. Skinner, 117 Mass. 474; Gi'eene V. Dooley, 74 Mo. 68 ; Eirchner v. Mil- o. Smith, 57 Yt. 268. The mere fact ler« 89 N. J. £q. 855 ; McEolway v, that during a controversy about boun- Armour, 2 Stockt. 115 ; Pitcher v. Dove, daries one of the parties located a fence 99 Ind. 175 ; Davenport v. Tarpin, 48 on the supposed line will not estop him Cal. 598 ; People v. Plumpke, 41 CaL to say that it was not on the line. No- 263 ; Eincaid ». Donnell, 51 Mo. 552 ; ble v, Chrisman. 88 111. 186. Evans v. Miller, 58 Miss. 120. In * Eeer v. Hitt, 75 111. 51. 60 ; Baner Halloran v. Whitcomb, 48 Yt. 306, 812, v. Gottmanhausen, 65 111. 499; and the and again in Louks v, Eenniston, 50 Yt. Massachusetts cases, supra. In Wis- 116, the court quotes the following Ian- con sin the estoppel can only arise where guage from Hicks v. Cram, 17 Yt. 449 : there is an uncertainty in fact in regard ' If one man has made a representation to the boundary at the time ; and if the which he expects another may or will true line can be made out by a survey, act upon, and the other does in fact act or by the calls and monuments of the upon it, he is estopped to deny the deed, the boundary is certain. Hartnng truth of the representation.* But if by v. Witte, 59 Wis. 285 ; Hass v. Plaut^ this it was intended to lay down an accu- 56 Wis. 105, 111. rate formula (which was probably not * See ante, p. 457. SECT. III.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 621 cases even of mistake after lapse of time» in connection with a change of situation.^ In McCormick v. Barnum acquiescence for twenty-two years was held sufficient In Chicago Ey. Co. v. People acquiescence for nineteen yeai's was deemed enough. In Adams v. fiockwell it was suggested that in case valuable im- provements had been made in accordance with the supposed boundary, acquiescence for eleven years might be sufficient. In Hagey v. Detweiler the period of acquiescence was fifteen years, and that was held long enough. And the same period was in Columbet v. Pacheco held to raise an estoppel to dispute the assumed boundary. So far as this doctrftie disregards entirely the question of the knowledge, presumptive as well as actual,^ of the party against whom the estoppel is claimed, it is not in accord with the general principles of equitable estoppels. But whatever the better rule in cases of acquiescence, the party act- ing upon the representation, if innocent, should not in any case be deprived of the improvements made by him, where compelled to give up the land.^ Under either doctrine, and whether there be knowledge or not of the true state of the title to the land in question, the estoppel applies only to rights existing in the party at the time of the representation or admission ; and he will not be precluded from setting up a paramount title afterwards 6tcquired from a third person.* The estoppel is not like that which arises under a conveyance with warranty. And the estoppel in any case 1 McConnick v. Barnum, 10 Wend, more o. Freeman, 58 Qa. 276 ; Greene 104 ; Chicago Ry. Co. v. People, 91 111. v. Smith, 57 Vt 268. And concerning 251 ; Diehl v. Zanger, 39 Mich. 601 ; mistake in an arbitration to settle boun- Stewart v. Carleton, 81 Mich. 270 ; daries, see Daris v. Henry, 121 Mass. Adams v. Rockwell, 16 Wend. 285, 802 ; 150. Perkins v. Gay, 8 Serg. & R. 827 ; Ha- * I Dolde v. Yodicka, 49 Mo. 98. See Dooley, 74 Mo. 63 ; Dolde v. Yodicka, however, Stockman v. Riverside Co., 64 49 Mo. 98 ; Major v. Rice, 57 Mo. Cal. 67. 384 ; Thomas v. Pullis, 56 Mo. 211 ; ^ McLain v. Boliner, 49 Ark. 218, State V, Wertzel, 62 Wis. 184 ; Strosser 225, quoting the text ; Donaldson v, V. Fort Wayne, 100 Ind. 443, 447 Hibner, 55 Mo. 492 ; Dillett v, Kemble, (knowledge presumed) ; Brackenridge 10 C. £. Green, 66. V. Howth, 64 Texas, 190. See Baze- 622 ESTOPPEL IN PAia [chap. xvm. arises odIj where there has been an honest agreement actual or implied for the settlement of the boundary.^ Mere survey had by adjoining owners works no estoppel, unless the surveyor or some one acting upon his report were an arbitrator;* though it is held that the grantee of lands who himself has had them sur- veyed and the lines marked will be estopped by his own survey.* Nor will the mere joining of the adjacent owners in building a division fence establish the boundary conclusively, though fol- lowed by occupation for several years.* Many other cases might be adduced in illustration of the rule under consideration ; a few may be added from widely different relations. Some courts, in a class of cases already considered, of warehouse receipts and bills of lading, have gone a doubtful length. In a recent case in Ohio* it appeared that the de- fendant, a warehouseman, had given two receipts by mistake for the same graia The second receipt came into the plaintiffs hands bona fide and for value after the grain had been delivered on the first receipt. In an action for the non-delivery of the grain on the second receipt the court allowed the defendant to show that it had been given by mistake.^ But this, while not without support,^ is contrary to many other authorities.^ If 1 Spring V. Hewston, 62 Cal. 442 ; ^ Spring v. Hewston, 52 Gal. 442. Cbapnian v. Crooks, 41 Mich. 595. See ' Singleton v. Whiteside, 5 Yeig. also Cronin r. Gore, 38 Mich. 381 ; Smith 86; Canithers v. Crockett, 7 Lea, 91, 96. V. Hamilton, 20 Mich. 433 ; Joyce v. The same case decides that the grantor Williams, 26 Mich. 832 ; Stewart v. will also be estopped by agreeing to such Carleton, 31 Mich. 270; Bobo t\ Rich- survey, assuming that the grantee has mond, 25 Ohio St. 115. It is said, how- conformed reasonably to the calls of the ever, that agreement may be shown by grant. And if the grantor has made no long acquiescence as well as by express objection, it seems that the survey is to contract ; and the decisions in regard to be taken to be in reasonable conformity dcquies^cence are not, it seems, in conflict to the calls, against subsequent owners, with the proposition of the text. Betts Caruthers v. Crockett, 7 Lea, 91, 96. !?. Bnjwn, 3 Mo. App. 20 ; Lindell v. Mc- * Chapman v. Crooks, supra, lisughlin, 30 Mo. 28. It may be added * Second National Bank v. Wal- in explanation of the objection of the bridge, 19 Ohio St. 419. Statute of Frauds in such cases that the ^ See also Blanchet v, PoweU's Co., agreement is not deemed to amount to L. F. 9 Ex. 74 ; Ferguson v. Northern conveyance, but only to the fixing of Bank, 14 Bush, 555 ; ante, p. 475. limits to what has already been con- ^ Williams v. Wilmington R. Ca, 98 veyed. Betts v. Brown, supra ; Hous- N. C. 42 ; Solomon v. Bushnell, 11 ton V. Matthews, 1 Yerg. 118 ; Bobo v, Oreg. 277. Richmond, 25 Ohio St. 115. * Coventry v. Great Eastern Ry. Co., SECT, ra.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL, 623 from the nature or situation of the property the case were such that the party making the admission might not be bound to know the facts, it might be right to hold that there was no estoppel.^ In the case of the Bank of Hindustan v. Alison^ the question was whether the defendant had by his conduct estopped himself from denying that he was a shareholder in the Bank of Hin- dustan. It appeared that two banking companies, the Bank of Hindustan and the Imperial Bank of China, had agreed to amal- gamate, the business of the latter company to be transferred to the former, and the shareholders having the option to take newly created shares in the Bank of Hindustan. The last- named bank issued circulars informing the shareholders of the other bank of the arrangement, and intimating the option to take new shares in the Bank of Hindustan. The defendant thereupon applied for and obtained an allotment of twenty-five shares, paid a portion of the sum due, and engaged to pay the residue. Several calls were afterwards made of which the de- fendant had notice, and he never repudiated his liability until the present action was brought against him for the non-payment of the calls. The amalgamation was declared void by a decree in chancery in 1868 ; but the plaintiff bank contended that the defendant was estopped by his conduct to deny that he had be- come a shareholder of the bank. The court decided in favor of the defendant on the ground that when he made application for the shares he was ignorant of the condition of the bank.^ 11 Q. B. D. 776, C. A. ; ante, p. 615 ; settlement which authorized the crea- Armour v, Michigan Central R. Co. , 65 tion of the shares, and secondly, he- N. Y. Ill, and other cases, ante, p. 475. cauiie he had for five years constantly ^ See Hale v. Milwaukee Dock Co., received a dividend on the shares which 29 Wis. 482. he held. Under these circnmstancefi, ^ L. R. 6 C. P. 54. having hound himself hy his execution ' In respect to the authorities cited of the deed and having accepted a in support of the estoppel Bovill, C. J. benefit, it was properly held that he said: 'The strongest for the purpose had estopped himself from denying were the cases of Hull Flax and Cotton that he was a holder of valid shares* Mill Co. V. Wellesley, 6 Hurl, ft N. 88, That, therefore, is a very different case and Sewell's O^ise, L. R. ^ Ch. 181. from the present In the case of Re In the former the court held that the New Zealand Banking Corporation, defendant was estopped from denying Sewell's Case [supra], the directors of a that he was a shareholder, first, he- comimny whose capitil was £300,000, cause he had executed the deed of divided into 8,000 shares of £100 each, 624 ESTOPPEL IN PAIS. [CHAP. XVni. The caso of Calhoun v, Eichardson was trover by the trustee in insolvency of an insurance company for certain bonds in the made an unantborized issne of 1,000 chosen, because bis application for the additional shares beyond their capital, shares was made not only without a They afterwarda called general meet- knowledge of the facts, with such an ings at which resolutions were passed ignorance of the facts on his part as to increase the capital to £600,000, would constitute an entire mistake as to be divided into 60,000 shares of to the subject-matter of the contract, £10 each; and it was held that the but with either a coiTesponding igno- issue of the 1,000 shares, although origi- ranee on the part of the plaintiffs or ually ultra vires^ was confirmed by the with a knowledge that the circum- resolutions, and that the allotters of stances were otherwise than their di- those shares were bound by the resolu- rectora represented in the circular to tions and were rightly placed on the which I have already drawn attention, list of contributories in the winding up I will assume that there was no fraud, of the company. The ground upon The other alternative is that both par- which the decision proceeded was that ties were mistaken as to that about Mr. Sewell and the other shareholders which they were contracting ; that the were parties to the resolutions ratify- plaintiffii honestly meant to s^ shares ing what had been done. I find nothing to which was annexed a certain privi- of the kind in the present case. There I^ge to be obtained by means of money was another case referred to at the advanced by the Imperial Bank of conclusion of the aTgument, namely, China; and that the defendant waa Be London and Northern Insurance satisfied to take shares with that privi- Co., Stace and Worth's Case, L. R. lege. It now appears that he cannot 4 Ch. 682, wMch strongly confirms this have shares with that privil^|;e. He is view. It IS true the circumstances of therefore not bound by his contract, the two cases are not precisely similar ; and the money advanced by the Impe- for there was no application for shares rial Bank of China must be restored there, as there was here. Two of the to them. Another sort of cstopfiel is directors under an attempted amalga- sought to be raised by reason of the mation which turned out not to be plaintiffs having been induced by the valid had attended meetings and acted conduct of the defendant to alter their as if they were shareholders. The position. When challenged to show court held that, the amalgamation be- how the plaintiffs had altered their ing void and there being no separate position in consequence of the defend- agreement by the defendants to be- ant's conduct, Mr. Brown said the bank come shareholders independently of the might upon the faith of the defendant amalgamation, there was nothing to fix and others having become shareholders them with liability as shareholders.* have entered into large engagements The Chief Justice then said that it which they would not otherwise have was clear from the circumstances of entered into. I find nothing in the the case that what had been done was special case to lead me in {K>int of fact the result of mistake, and that the to that conclusion ; and if it were ro, plaintiffs had not been misled by thq it would be necessary to show that the defendant Mr. Justice Willes forcibly plaintiffs had been led to adopt such a stated these points. * Has the defend- course by the conduct of the defendant, ant . . . chosen,* said he, 'to become I think it might be said more justly a shareholder in the bank of Hindus- that the plaintiffs are the wolf and the tan ? I may at once dispose of that defendant the lamb. It was the plain- question by saying that he has not so tiffs who led the deCendaat into the SECT. III.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 625 possession of the defendant. It appeared that the defendant, who had been a director and the principal stockholder in the company, signed a certificate to an affidavit of the president of the company in which certificate it was declared that all the statements made in the affidavit were tme so far as the defend- ant had knowledge. In the affidavit it was declared that the bonds in question were part of the property of the company. It appeared also that the defendant had shortly before signed a receipt which was held by the company, in which he had ac- knowledged that the bonds belonged to the insurance company ; and the plaintiff claimed that this receipt had been given to enable the company to make their report to the comptroller of the state. It was also proved that soon after the receipt was given a return was made to the comptroller and published ac- cording to law, publication being made in the town in which the defendant resided ; and in this return the bonds were also stated to be the property of the company. The court held that evidence was proper to show that the certificate had been given under a misrepresentation of the contents of the affidavit, and with no knowledge that it stated that the bonds belonged to the company ; that the defendant might show that to prevent injury he had given information as soon as the facts were discovei*ed ; that he might show that he was unable to read writing, and that the receipt had been obtained by fraud ;^ and that he might mistake of supposing that he bad valid dice. For example, where the directors shares in their bank. It was they who of a company have been guilty of some held out to him the inducement to be- irregularity in the issuing of shares, and come a shareholder. It was they who with knowledge of the irregularity a muddied the source^ of information by party has agreed to become a share- intimating to the defendant that he holder, or after having been made ac- might get shares on the advantageous quainted with the irregularity has terms they represented.' The case was received dividends or done some other now carried to the Exchequer Chamber, act to express his acquiescence in what where the judgment of the Common has been done, so that the situation of Pleas was affirmed. L. R. 6 C. P. 222. the directors has been altered to their Kelly, C. B. speaking for the court, now prejudice, they have a right to treat said : ' A party is only estopped from him as a shareholder, and he is estopped showing the truth when he has by some from setting up the irregularity by way act or declaration acquiesced in an as- of defence.' snmed state of things, and by such ac- ^ See Wilcox v. Howell, 44 N. T. quiescence the situation of the other 398. Farther, ante, p. 583. party has been altered to his preju- 40 626 ESTOPPEL IN I*AI3. [CHAP. XVHL show that he had in fact no knowledge of the statement in the letui-n ooncerning the bonds. But the court suggests that the case would have been different had the defendant been guilty of misconduct or gross negligence.^ § 4. Ignorance of Facts hy him who claims the Estoppel. The person, further, who claims the benefit of this estoppel must show that he was ignorant of the truth in regard to the representation; and he must have been permissibly ignorant thereof.' He may, like the party against whom the estoppel is ^ Upon this last point Mr. Justice the gronnd claimed by the' plaintifi*. Ellsworth, speaking for the court, said : The plaintiff insisted that the defend- ' Now the plaintiff insisted that as the ant ought to have informed himself, defendant was a director of the com- and not to have given his sanction , pany at that time [when the return was either directly or indirectly, to the re- made], as well as befoi-e and after, and turn, and afterwards set up a claim regularly attended the directors' meet- dii'ectly against it. We do not mean ings, he must be held to have known to say as matter of law that the de- the contents of this annual return, and fendant did sanction the return or is to have assented to it as exhibiting the liable under the circumstances, hut it true situation and condition of the com- was quite proper that the jui^ should pany's assets, and that under all the pass upon the question whether the de- circumstances of the case the defendant fendant had been guilty of misconduct was guilty of fraudulent misconduct or gross negligence so that he should or gross negligence in permitting the not be allowed to shield himself upon return, if it was false, to be made and the plea of ignorance. It is the sam- published, and the company to transact ming up in the charge of the court to business on the credit of it. . . . This which we most object as to the effect of claim as presenting a principle of law gross negligence when there is not ac- Wu til ink unobjectionable, and so we tual knowledge. . . . We forbear to presume the judge himself considered say what degl^e of neglect and inat- it ; for he proceeded to instruct the tention in the directors and officers of jury as to the nature and effect of an incorporated companies, in the duties estoppel, and correctly enough ' told for which they are appointed and which them that to estop the defendant his they are understood to engage to per- action must have been understandingly form to some reasonable extent towards and intelligently had, and his admis- the stockholders and the confiding pub- Sions understandingly and intelligently lie, will subject them to damages. This made, which is well enough as to the is a delicate point to settle, and not point of knowledge ; but the judge says likely to be correctly determined upon nothing about the effect of fraudulent the common notions which seem to pre- conduct and g^ross negligence as estop- vail too generally among certain classes ping the defendant and subjecting him in the community.* to damages. We think the defendant ^ Steel v. Smelting Co., 106 U. S. might have been unacquainted with 447 ; Fitzpatrick v. Flannegan, ib. 646; the contents of the return to the comp- Shipley ty. Fox, 69 Md. 572, 579. troUer, and yet possibly be liable on SECT. 17. J iSTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 627 alleged, have been so situated as to be bound to know the facts and apart from the making of the representation he will be subject to the same sort of presumptions which we have seen applicable to the opposite party .^ It' he knew or under all the circumstances ought to have known the facts, the estoppel, even if the representation was made on oath, falls to the ground.' • But the situation of the party to whom the representation is made is not wholly like that of the one who makes it ; for the very representation may well have put him off his guard and prevented him from availing himself of sources of information open to him. And it is well settled that a clear and positive representation of fact may be acted upon, though the person to whom it was made had ample means of knowing the fact,' — indeed, though he had legal notice thereof, as distinguished from knowledge, as e. g. by the due r^stration of an instrument.^ One or two illustrations of the foregoing rule will now be given. In a suit upon a promissory note given for the purchase of certain stock, in which suit it appeared that the defendant purchased the stock from the president of the company, who 1 As where, in the ahsenee of any will, in the absence of fraud, create an representation, the parties stand in the estoppel. Blackburn v. Bell, 91 111. same relation .towards the fact. Bales 484. Probably the same would be true V. Perry, 51 Mo. 449 ; Kingman v. Ora- of a parol statement agreed uj)on by the ham, 51 Wis. 282 ; Knouff v. Thomp- parties as ground of a contract. See son, 16 Penn. St. 8^57, 364. £. g. in Stewart v. Metcalf, 68 111. 109 ; ant«, regard to a recorded deed of land, or in pp. 881, 459. r^ard to possession. Shipley v. Fox, * Dodge v. Pope, 98 Ind. 480 ; Camp- 69 Md. 572 ; Scates v. King, 110 111. bell v. Frankem, 65 Ind. 591 ; Redgncve 456 ; ante, p. 575. v. Hurd, 20 Ch. D. 1, 18 ; David v. a Smith V. Kremer, 71 111. 185; Dor- Park, 108 Mass. 501 ; Keller v. Equi- largue v. Cress, ib. ; Robbins v. Potter, table Ins. Co., 28 Ind. 170 ; Parham v. 98 Mass. 682 ; 8. c. 11 Allen, 588; Buck Randolph, 4 How. (Miss.) 435 ; Kiefer V. Milford, 90 Ind. 291, 298 ; Logans- 9. Rogers, 19 Minn. 82 ; Holland v, port V. La Rose, 99 Ind. 117, 131 ; Anderson, 88 Mo. 55 ; Wannell v, Kern, Mayer v. Ramsey, 46 Texas, 871 ; SMI- 57 Mo. 478 ; Mead v. Bunn, 82 N. Y. lock V. Gilbert, 23 Minn. 873 ; Plum- 275, 280 ; Webster o. Bailey, 81 Mich, mer v. Mold, 22 Minn. 15 ; St. Louis 86 ; 1 Story, Equity, p. 215, 18th ed., r. St. Louis Qas Co., 5 Mo. App. 484 ; note. 8. c. 70 Mo. 69 ; Phinney v. Johnson, * David v. Park, 103 Mass. 501 ; 18 S. Car. 25 ; Kingman v. Graham, 51 Evans v, Forstall, 58 Miss. 80 ; Snl- Wis. 232 ; Brant v. Virginia Coal Co., phine v. Dunbar, 55 Miss. 255 ; Par- 98 V. S. 826 ; Andrean v, Redfield, 98 ham v. Randolph, 4 How. (Miss.) 485 ; U. S. 225. In the case of a deed a reci- Kiefer v. Rogers, 19 Minn. 82 ; Holland tal known by both parties to be untrue v, Anderson, 38 Mo. 55. 628 ESTOPPEL IN PAIS. [CHAP. XVIII. represented that it was at par and that the business was of great value and that the corporation was solvent, all of which was false, it was held that though the defendant bad ample oppor- tunity, before his purchase, of learning the true state of afEairs, he had a right to presume that the vendor was fully informed upon the subject and to rely upon his statements.^ In a case in Ohio ^ the plaintiffs sought to recover of 'Adams & Co.' a sum of money placed in their hands for investment but which they had not invested. The answer was filed, not by Adams & Co. but by another firm, consisting mainly of the same individuals, calling themselves ' Adams & Co.'s Western Express.' It appeared that there were in fact two express com- panies composed largely of the same members, having a branch office in the place, kept by a common agent. One of these companies was the original firm of Adams & Co. ; the other was the one which answered to the suit. The name of the latter company alone was upon the sign of the branch office ; but its business was transacted as well in the name of Adams & Co., and Adams & Co.'s Express, as in its own proper name. The defendants were held liable; the plaintiffs ignorance of the facts being deemed excusabla' § 5. The TfUerUion. The next requirement to this estoppel is that the representa- tion must have been made with the intention, either actual or 1 Wannell v. Kem, 67 Mo. 478. both. If this was a tnisundentandisg, * Adams v. Brown, 16 Ohio St. 75. it was a misunderstanding induced by ' ' Had Miss Pollock,' said the court, the acts of the defendants, and probably referring to one of the plaintiffs, ' known shared in by the pnblio generaUy. The the distinctiye business of these two companies being composed in part of companies, or had her ignorance been the same individuals, each is presumed the result of her own fault or folly* to be cognizant of the business and •^but that seems rather too strong — name of the other. If the new com* *or free from fault on the part of de- pany did not intend to deceive and fendants, the case would have been mislead the public, such was at least different But such were not the facts, the effect of their acts. They cannot In her eyes both companies were one act in the name of one company and do and the same. To her nnderstanding the business of that company, and then the name of one was the name of each, fall back upon the rights and immimi* and the bosiiiess of either was that of ties of the othnr.' SECT, v.] ESTOPPEL BY CONDUCT : EQUITABLE ESTOPPEL. 629 reasonably to be inferred ^ by the person to whom it was made, that it should be acted upon.' In general, where there is nothing reasonably indicating that the representation was intended to be acted upon as a statement of the truth, or that it was tanta- mount to a promise or agreement that the declaration made is true so as to amount to an undertaking to respond in case of its falsity, the party making it is not estopped from proving the truth * Thus, in Kuhl v, Jersey City it was held that a receipt for taxes on land given by a tax-collector on receiving a check would not estop him from showing that the check was not paid, 1 For illustrations otiier than those See Foster v, Charles, 6 Bing. 896 ; of the text see Tracy v. Lincoln, 145 s. c. 7 Bing. 105 ; Pasley v. Freeman, Mass. 857; Kinney v.Whiton, 44 Conn. 8 T. R. 51 ; a. o. Bigelow's L. C. 262, 269 ; Leather Manuf. Bank v. Torts, 1. Morgan, 117 U. S. 96, 108 ; Freeman * Clearly there need be no intention V, Cooke, 2 Ex. 654 ; Carr v. London to deceive. Galbraith v. Lunsford, 87 Ry. Co., L. R. 10 C. P. 807 ; Arnold v. Tenn. 89, married woman ; and comp. Cheqae Bank, 1 C. P. D. 578 ; Smith the action for deceit, 1 Bigelow, Law of V. Hughes, L. R. 6 Q. B. 597 ; Hardy Fraud, 538. V. Chesapeake Bank, 51 Md. 562 ; ' For illustrations see Tyler v. Odd Plumer v. Lord, 9 Allen, 455 ; King- Fellows Assoc, 145 Mass. 184, 188 ; man v. Graham, 51 Wis. 282; Sessions Moore v. Spiegel, 148 Mass. 418, 417; «. Rice, 70 Iowa, 806 ; Tiffsaty v. An- Stebbins v, Bruce, 80 Va. 889, 892 ; derson, 55 Iowa, 405 ; Vanneter v. Cross- Dnrant v. Pratt, 55 Yt. 270 ; Parker v. man, 42 Mich. 465 ; Peake v. Thomas, Moore, 59 K. H. 454; Bobb v. Shep- 89 Mich. 584 ; McMaster v. Insurance hard, 50 Mich. 189 ; McCann v. Ather- Co., 55 N. Y. 222 ; Phillips v. GaUant, ton, 106 lU. 81 (casual remarks) ; Faw- 62 N. Y. 256 ; Blair v. Wait, 69 N. Y. cett v. New Haven Organ Co., 47 Conn. 113 ; Pence v, Arbuckle, 22 Minn. 417; 224 ; Danforth v. Adams, 29 Conn. 107; Staton r. Bryant, 55 Miss. 261 ; Davis Farist's Appeal, 89 Conn. 150 ; Mc- V. Bowmar, ib. 671, 749; Mutual Ins. Adams v. Hawes, 9 Bush, 15; Zucht- Co. V. Norris, 31 N. J. Eq. 583, 585 ; mann v. Roberts, 109 Mass. 58 ; Kuhl Kuhl V. Jersey City, 8 C. E. Green, 84; v. Jersey City, 8 C. £. Green, 84 ; Mul- Rosenthal v. Mayhugh, 83 Ohio St 155; ler o. Pondir, 55 N. Y. 325 ; Davis v. Kinnear v. Mackey, 85 111. 96 ; Leeper Smith, 48 Vt. 269 ; Planters' Ins. Co. V. Hersman, 58 111. 218 ; Horn «. Cole, v. Selma Bank, 63 Ala. 585 ; Townsend 51N. H. 287; Chellisv. Coble, 87Kans. v. Cowles, 81 Ala. 428; Cravens v, 558; Brant v. Yirginia Coal Co., 93 Kitts, 64 Ind. 581; Williams v, Jack- U. S. 827 ; Casey v. Galli, 94 U. S. son, 28 Ind. 334 ; Long v. Anderson, 674 ; infra, pp. 631 et seq. As there 62 Ind. 537 ; Allum v. Perry, 68 Maine, need not be any actual design that the 232 ; Pierce r. Andrews, 6 Cush. 4 ; representation should be acted upon. Hall v. Cavanaugh, 6 Mo. App. 143; there need be no design to defraud. Chandler v. White, 84 111. 435 ; David - Pitcher v. Dove, 99 Ind. 175, 178; son v. Young, 38 111. 152; Flower v, Anderson v. Hubble, 93 Ind. 570; Elwood, 66 111. 447. Comp. also the Continental Bank v. National Bank, language of Holmes, J. in O'Donnell v, 50 N. Y. 575 ; Blair v. Wait, 69 N. Y. Clinton, 145 Mass. 461, 463, in regard 113 ; Stevens v. Dennett, 51 N. H. 824. to assent. 630 EBTOPPEL IN PAIS. [CHAP. XYIU. though a purchaser of the property was induced by such receipt to pay the whole consideration. The collector, it was said, did not give the receipt knowing that it would be used for such a purpose, nor did the mere giving the receipt raise a presumption that it would be used to defraud a purchaser. So a third pei*son to whom the representation was not made cannot claim the es- toppel unless it was intended or apparently intended that he should act upon it^ The most important case upon this subject after Pickard v. Sears is perhaps Freeman v. Cooke,* which was decided by the Court of Exchequer in the year 1848, and led the court to ex- plain the term ' wilfully ' (' where one by his words or conduct wilfully causes another to believe/ etc.) as used in the case of Pickard v. Sears.^ It was an action of trover by the assignees of William Broadbent against the sheriff of Yorkshire, for goods of the bankrupt There were pleas of not guilty, not possessed, and leave and license. The conversion alleged was the seizure of the goods by the defendant's officers under a fieri facias against Joseph and Benjamin Broadbent. It appeared that when the officers entered, the bankrupt told them the goods seized were the property of Benjamin; he did so supposing that the officer had no writ against Benjamin. Afterwards he contradicted that statement^ and said they were the goods of his brother Joseph. It was contended that this representation bound William be- cause it induced the officers to seize, and that he could not com- plain of that act, nor could the assignees who claimed under him. The jury found that the goods were really William's ; but they also found Hhat William represented the goods to the sheriffs officers as the goods of Benjamin so as Ui induce them by that false representation to seize them;' and the question was whether this finding was sufficient to estop the bankrupt and the plaintiffs as his assignees from complaining of the seiz- ure of the goods. The question was answered in the negative^ the court declaring, however, in effect that intention to have the representation acted upon might be presumable as well as actual, so that a man would be bound as well when his conduct 1 Mayenboig v. Haynes, 60 K. Y. * 2 Ex. 654. 675. * AAta, p. 55S. SECT, y.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 681 or the circumstances of the case justified the inference of inten- tion as when he actually intended the result^ Negligence when naturally and directly ^ tending to indicate intention will there- fore have the same effect in creating the estoppel as actual intention. The point is well settled.^ But mere want of care towards preventing an unauthorized transfer of one's property or the like act creates no estoppel ; otherwise a man might be 1 The jadgroent of the court was But if we apply this rule either in the delivered by Parke, B. who, referring terms in which it is enunciated in Pick- to the rule in Pickard v. Sears, said : ard «. Sears or as it is abore expounded, ' That was founded on previous au- the finding of the juiy is iDsuificient to thorities in the cases Graves v. Key, entitle the defendant to have a verdict 8 Bam. & Aid. 81S» and Heane «. entered for him on the plea of not pos- Sogers, 9 Bam. k C. 586, and has been sessed. It is not fouud that he intended acted upon in some cases since. ... to induce the officer to seize the goods Whether that mle has been correctly as those of Benjamin : and whatever in- acted upon by the jury in all the re- tention he had on his first statement was ported cases in which it has been ap- done away with by an opposite state- plied is not now the question ; but the ment before the seizure took place. Nor proposition contained in the role itself can it be said that any reasonable man as above laid down in the case of Pick- would have seized the goods on the faith aid v. Sears must be considered as of the bankrupt's representation taken established. By the term '*wilfuUy," altogether. In troth, in most cases to however, in that role we must under- which the doctrine in Pickard v. Sears stand, if not that the party represents is to be applied the representation is that to be trae which he knows to be such as to amount to the contract or untrae, at least that he means his rep- license of the party making it. Here resentation to be acted upon and that there is no pretence for saying it it is acted upon accordingly ; and if amounted to a license, and a contract whatever a man's real intention may is out of the question.' be he so conducts himself that a rea- *' Tracy v. Lincoln, 145 Mass. 857, aonable man would take the represen- 860 ; Carr v, London Ry. Co., L. R. 10 tation to be troe, and believe that it C. P. 307 ; Arnold v. Cheque Bank, was meant that he should act upon it, 1 C. P. D. 578 ; Vagliano v. Bank of and did act upon it as trae, the party England, 23 Q. B. D. 248> C. A. affirm- making the representation would be ing 22 Q. B. D. 103. equally precluded from contesting its * Besides the cases just cited, see truth ; and conduct by negligence or Qriifeth v. Brown, 76 Cal. 260 ; Mont- ouission where there is a duty cast gomery v, Keppel, 75 Cal. 128 ; Hardy upon a person by usage of trade or v. Chesapeake Bank, 51 Md. 562 ; otherwise to disclose the troth, may Manufacturers* Bank v. Hazard, 80 often hilve the same effect. As, for in- N. Y. 226 ; Hom v. Cole, 51 N. H. stance, a retiring partner, omitting to 227 ; Pence v. Arbuckle, 22 Minn. 417; inform his customers of the fact in the Kingman 9. Graham, 51 Wis. 282 ; usual mode that the continuing part- Bmnt v, Vii^nia Coal Co., 93 U. S. ners were no longer authorized to act 826 ; ante, p. 629, note 1. And see as his agents, is bound by all contracts Breeze v. Brooks, 71 Cal. 169, 188 ; made by them with third persons on Gillett v. Wiley, 126 IlL 810, 324. the faith of their being so authorized. 682 BSTOPPEL IN PAIS. [CHAP. XVIII. precluded from alleging that bis signature had been forged, on the ground that he had negligently employed a dishonest clerk. It is only where the negligence is a breach of duty to the party claiming the estoppel, as e. g. where it has amounted to permit- ting another to clothe himself with an apparent authority to act for the party against whom the estoppel is alleged, that the rule of intention is satisfied.^ The language of Lord Denman in Pickard v. Sears is also ex- amined and explained in the recent case of Gomish v. Abington.^ This was an action of debt for goods sold and delivered, work done and materials provided, and on accounts stated. It ap- peared that the plaintiff, a lithographic printer, took into his employment one Gover to superintend the printing and take orders for printing, at a salary of 35«. a week. The defendant was a publisher. The plaintiff stated that the first order on the defendant's account came from Gover. In September, 1857, the plaintiff made out an account against the defendant, charging him with £108 for printing maps, and gave it to Gover, who handed the account to the defendant, and the defendant paid it. Afterwards further printing was done by the plaintiff, and paper supplied by him. The plaintiff sent the goods, some of them being accompanied with delivery notes signed by himself, for which receipts were signed by the defendant ; while in other in- ^ See ante, p. 596 ; Swan v. North others. Vieie v. Judson, 82 N. Y. 38 ; British Co., 7 Hurl. & N. 603 ; s. c. 2 Leather Manuf. Bank v. Morgan, 117 Hnrl. &C. 175; Holmes v. Trumper, 22 U. S. 96; ante, p. 596 ; McKenzie v. Mich. 427 ; Greenfield Bank v. Stowell, British Linen Co., 6 App. Cas. 82. A 123 Mass. 196 ; People t*. Bank of North person who knows that a hank is rely* America, 75 N. Y. 548. The learned ing upon his forged signature to a bill judge in the last case (at p. 562) asserts cannot lie by and not divulge the fact that ' a party may also be estopped by until he sees that the position of the his negligence when his name has been bank is altered for the worse. But mere forged, and for an unreasonable time he silence for a fortnight from the time neglects, not to discover the forgery, when he first knew of the forgery, dur- but to give notice thereof after discovery ing which the position of the bank was to the party imposed on. Canal Bank v, in no way altered or prejudiced, can- Bank of Albany, 1 Hill, 287.' It is cer- not be held an estoppel against asserting tainly good morals and it may be good the forgery. McKenzie v. British Linen law to require a man to give notice of a Co., supra. To the same effect with forgery of his signature, if he has notice the last sentence, see Zell*s Appeal, 109 that the party holding the pai>er is in a Penn. St. 344. position to save his own rights against * 4 Hurl. & N. 549. SECT, v.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 688 stances the delivery notes were from Gover. Gover having left the plaintiffs service in the year 1858, the plaintiff afterwards called upon the defendant for a settlement of his account. The defendant said he knew nothing about it The plaintiff asked him if lie had not received the account, and the defendant re- plied that he had had no transactions with the plaintiff, — he owed the money to Gover. He admitted having received the invoice of the paper, and produced it This invoice charged him as debtor to the plaintiff. The defendant stated that Gover had applied to him to publish various works and maps for himself, which the defendant agreed to do, and that he had paid over to Gover the proceeds of the sales, only deducting the commission , and that on receiving the iyvoice of paper above referred to he asked an explanation of it Gover replied, ' That fool Cornish has been making out invoices himself, and has charged you in- stead of ma I will see him on the subject ; he will at once see that it is an error; and you will hear no more about it.' The de- fendant said that he was satisfied with this explanation, and he heard no more about it till the interview with the plaintiff above mentioned. He said that Gover had no authority to pledge his credit with the plaintiff. It was not disputed that as between Gover and the defendant the account was settled. The jury found that the defendant did not authorize Gover to use his name in ordering the work to be done ; but they also decided that the manner in which the defendant had signed the receipts was such as to induce the plaintiff to think that he was buying the goods on his own account Judgment was given for the plaintiff; the ground being that the jury had found that the defendant, whether intentionally or not, had led the plaintiff to form an opinion that he was dealing with the defendant, and had induced him to furnish goods to the defendant^ The learned Chief Baron declared the true rule to 1 'The sending of the invoice was the plaintiff, he most take the conse- equivalent to notice that the defendant quences. Lord Wensleydale, formerly was not dealing with Gover, hat with Baron Parke, in Freeman v. Cooke, 2 the plaintiff. If after that the defend- Ex. 654 [ante, p. 681, note], comment- ant chose to accept the explanation of im^ontheearliercaseof Pickardv. Sears, Gover, when he ought nof to have been pointed out a limitation of the applica- satisfied without communication with tion of the rule, viz. that *' in most cases 634 B8I0PPEL IN PAia [chap. XYin, be that if a party uses language which, in the ordinary course of business and the general sense in which words are understood, conveys a certain meaning, he cannot afterwards say he is not bound if another, so understanding it, has acted upon it If any person by a course of conduct or by actual expressions so con- ducts himself that another may reasonably infer the existence of an agreement or license, whether the party intends that he should do so or not^ the party using that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct In the pres- ent case the plaintiff had given notice that he understood that the defendant was dealing with him. The defendant gave no answer. He ought to have sent b^k the invoice. Mr. Baron Bramwell put the case upon the same ground. It was a strong fact, he remarked, that the plaintiff for a long time had supposed himself to be dealing with the defendant When this was brought to the attention of the defendant, he had been content to take the word of the servant who was defrauding his master. Taking the finding of the jury that the plaintiff sup- posed that he was dealing with the defendant^ and that the de- fendant's conduct was such as reasonably to induce that belief, he thought that the rule referred to by the Lord Chief Baron applied. The rule was that if a man so conducts himself, whether intentionally or not^ that a reasonable person would infer that a certain state of things exists, and acts on that inference, he shall afterwards be estopped from denying it Mr. Baron Martin, though agreeing in the general conclusion, doubted whether there could be an estoppel without intention ; and this and the like cases which proceed upon the ground of to which the doctrine of Pickard v, the rale as laid down in Pickard v. Sears is to be applied the representation Sears, means nothing more than " vol* is such as to amount to the contract or untarily.'* Lord Wensleydale peroeiv- license of the party making it" No ing that the word " wilfolly " might he doubt unless the representation amounts read as opposed, not merely to '' invol- to an agreement or license, or is under- untarily," but to *' unintentionaUy," stood by the party to whom it is made showed that if the representation was as amounting to that, the rule would made voluntarily, though the effect on not apply ; but although the case of the mind of the hearer was produced Freeman v. Cooke limited the applica- unintentionaUy, the same result would tion of the rule to this extent, the court follow/ point ont that the word ** wilfully," in SBCT. y.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL, 635 presumable intention, though enunciating a perfectly sound doctrine, should be followed only when there is clear justifica- tion for the act of the party who supposed an intention.^ The necessity of evidence of intention to make a dedication to the public (which may be done in pais, and by conduct, as well as by deed ^ may be noticed here. In a case ' in which the plaintiff sought to restrain the defendants from exercising authority over a strip of land as a highway the defendants rested their claim on the following facts : The heirs of one Gk)uvemeur had several years before opened and fenced a strip of land com- municating with a public road at one end, with the intention of making a dedication of it as a highway. The strip was mapped and designated as a public way, with the consent of the owners, upon a map of the village of Cold Spring. The land so opened and fenced was used by the public from that time, by walking and driving upon it, until the plaintiff closed it The court held that there had been no dedication on the ground that there was no evidence of a positive intention.^ But one who fences off a 1 See Zacbtman v, Roberts, 109 abandon his property to the specific Mass. 53 ; Wright v. WiUis, 2 Allen, pnblio use. If they be equivocal or do 191. not clearly and plainly indicate the in- ' McCormick v. Baltimore, 45 Ind. tention to permanently abandon the 512 ; Shane v. Moberly, 79 Mo, 41 ; property to the use of the public, they Redwood Cemetery Assoc, v. Bandy, 9S are insufficient to establish a case of Ind. 246 ; Beatty v. Kurtz, 2 Petens dedication. In the case of a hiji^hway 566 ; Hunter v. Sandy Hill, 6 Hill, 407. the public must accept the dedication, " Holdane v. Cold Spring, 21 N. Y. and before it is accepted the owner is 474. not precluded from revoking it. It ia ^ The law was thns stated by Wright, not necessary that there should be any J. in delivering the opinion of the court: formal act of acceptance by the pnblio ' Undoubtedly the owner of land may authorities, but it may be indicated by dedicate or set apart a street or highway common nser under circnmstances show- through it to the public use, and if the ing a clear intent to accept and enjoy as dedication be accepted, it will work an such the easement proposed to be dedi- estoppel in pais, precluding the owner cated. Throwing open land in a village from asserting any right inconsistent and fencing it on each side, and causing with such use. The dedication and ac- the way or avenue to be designated as eeptance are to be proved or di<«proved public on a map of the village, are acts by the acts of the owner and the cir- tending strongly to show a design pres- cumstances under which the land has ently or at some future period to deel applied ; which ment of the court in Woodley r. Coven* 'doctrine is that when one states a thing try did not rest on the fact of the pay- to another with a view to the other ment of the price. It will be noticed altering his position, oi- knowing that there that although the fact did exist of as a reasonable man he will alter his payment of price, Martin, B. seems to position, then the person to whom the found his decision on the assenting to statement is made is entitled to hold ?iold, and the fact that when that assent the other bound, and the matter is regu- was ooramnnicated to the plaintiffs they lated by the state of facts imported by altered their position. In Gillett v. the statement. 'Woodley had altered Hill, 2 Cromp. ft M. 630, there was no his position by paying purt of the price, payment of the price, and the Court of 1 2 Hurl, ft C. 164. 648 ESTOPPEL IN PAIS. [CHAP. XVIII. sumptive. The plaintiffs brought trover for a quantity of fluur in the possession of the defendants, one of whom was owner of a gmiu warehouse. One Clarke, who had purchased but had not paid for a quantity of flour of the defendants, applied to the plaintiffs for advances, and gave to them a delivery order on the defendants for a portion of the flour which he had pur- chased. The plaiutiffs before consenting to make any advance on this order sent it to the warehouse with the inquiry whether ' it was all in order,' and received the answer, * Tes.' Samples were then taken to the plaintifis ; and they thereupon made an advance of £950 to Clarke. Before the flour had all been deliv- ered Clarke was declared a bankrupt, and the defendants refused to deliver any more to the plaintiffs ; and their defence was that as the flour purchased by Clarke had never been separated from the bulk no property had passed. But the court held that they were estopped to set up this defence. The case of Stonard v. Dunkin,^ also cited by Mr. Justice. Blackburn, was put on the ground of tenancy. In this case a warehouseman on receiving an order from a dealer in malt to hold it on account of. the plaintiff gave a written acknowledg- ' ment that he so held it It was contended for the defendants, assignees of the dealer, that by the custom of the trade a remeaS" uring of the malt was necessary to a transfer of the property, and that the dealer^s bankruptcy intervened before this had been done ; on this ground the assignees claimed the malt But Lord EUenborough said : ' Whatever the rule may be between buyer and seller, it is clear the defendants cannot say to the plaintiff. The malt is not yours, after acknowledging to hold it on hia account By so doing they attorned to him ; and I should en- tirely overset the security of mercantile dealings were I now to suffer them to contest his title.' Exchequer gave judgment against the conduct when the delivery order waa wharfingeTB on the ground that they presented. -The pkintiff may well eay, were estopped from denying the facts I abstained from active measures in con- nfter the other party had altered his po- sequence of your statement, and I am sition, relying on their conduct when entitled to hold you precluded from de* the delivery order was presented. In nying that what yon stated was true.* the pi-eiient case the plaintiff altered his ^ 2 Camp. 844. position, relying on the defendant's SECT. YI.] ESTOPPEL BT CONDUCT : EQUITABLE ESTOPPEL. 649 *The case of Hawes v. Watson^ was similar in facts; and Stonard v. Duukin was cited in favor of the decision. The same doctrine was again maintained in Gosling v. Birnie,' and again put on the ground of attornment This position, however, is entirely consistent with the presumption of damage. The plaintiff rests satisfied in the belief as a reasonable man that the property has passed to him ; and he is prevented by the ac- knowledgment of the opposite party from taking measures to place himself in statu quo with the seller.^ But this, though not untenable, is dangerous ground. These cases suggest a question already adverted to, of the true ground on which to rest the right of One who has taken by purchase or assignment a bill of lading, warehouse receipt, or the like instrument. It has sometimes been considered that this is a phase of purchase for value.* That, however, appears to be straining a very characteristically marked doctrine, that purchcise for value without notice cuts off equities ; here there is no equity to cut off, except perhaps in the very broad sense of the law of bills and notes, in which mistake in regard to consideration is so treated. The saf^r ground to take is that the representation in question operates by estpppel ; and then we have the question whether the estoppel is made out when the bill of lading or warehouse receipt is taken merely as collateral security for debt, without the surrender of any right In New York, it seems, it would not be;* but the general tendency is towards the right of the creditor to the benefit of -the acknowledgment It is an exceptional case, however, to be justified only on the requirements of trade. Acting upon the representation should, in generd, be more substantial Where it is plain that the representation lias been substan- tially acted upon, there is of course no question (supposing the existence of other elements) that an estoppel arises. Thus, where an adjustment of losses between several insurance companies is agreed upon, and the insured makes settlement accordingly with 1 2 Barn, k C. 540. * Ante, p. 475, note 8. * 7 Bing. 889. * 1 Bigelow, Law of Fnud, 405^ • See also ante, p. 689. 400. 650 ESTOPPEL IK PAIS. [CHAP. XYIII. one or more of the companies, the rest will be estopped in the abseDce of fraud to dispute their liability as adjusted.^ It is clear too that what may not under the circumstances have amounted to an estoppel for want of justifiable action upon the representation may become an estoppel by ratification or misleading acquiescence. Thus, it is laid down that if a party having an interest to prevent an act being done, as e. g. acting upon a mistaken statement of his, has full notice of it6 hav- ing been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it and to the position of others as altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would liave had if it had been done by his previous license.' Only the person to whom the representation was made or for whom it was designed can act upon and avail himself of it' There has been some drifting, indeed, from the safe anchorage of the rule, in regard to the point stated ; ^ but the better cases hold well to the position. An illustration may be seen in the case of Towusend Bank v. Todd, the facts of which have been stated on a preceding page.^ One of the grounds why the defendant could not make out an estoppel against the plaintiff was that the statements in question had been communicated to her (the defendant) without authority from the plaintiff. A person who receives statements at second-hand, not intended for him, clearly has no right to act upon them.' Indeed, it is equally clear that a mere bystander who has overheard a state- ment made to and for another has no better right to act upon it than if it had been (Communicated without authority to him ; 1 Fishbeck v. PboDnix Ins. Co., 54 Townsend Bank v. Todd, 47 Conn. 190 ; Gal. 422. Kinney i>. Whiton, 44 Conn. 262 ; Peek ^ Lord Campbell in Cairacroas «. v. Gurney, L. R. 6 H. L. 877 ; Swift v, Lorimpr, 3 Macq. 827, 830, quoted by Winterbotham, L. R. 8 Q. B. 244. Harlan, J. in Leather Manuf. Bank v. * See Mitchell v. Reed, 9 Cal. 204 ; Morgan, 117 U. 8. 96, 118. See also Horn «. Cole, 61 N. H. 287. Both Fountain v. Whelpley, 77 Maine, 132, cases are justly criticised in Kinney v. ami cases cited, in regard to making Wbiton, 44 Conn. 262. known one's rights after notice that a * Ante, pp. 578, 679. representation not intended to be bind- ^ Kinney v. Whiton, 44 Conn. 262 ; ing has been acted upon. Ante, p. 687, Mayenberg v, Haynes, 60 N. Y. 676 ; note. Moigan v. Spongier, 14 Ohio St. 102. » Durant v. Pratt, 66 Vt. 270 ; BBCT. VI.] ESTOPPEL BT CONPUCT : EQUITABLE ESTOPPEL. 651 and so it has been decided.^ It however, the declaration was intended to be genera], then it seems that one who did not hear it» but to whom it. was made known direcUj afterwards, or within the time to be allowed for acting upon it^ may act upon it.^ This should be the limit of the law;^ more than this would be to make a man responsible for an act not his own or that of his agent. But some cases have gone, and some have been inclined to go, further.^ It may make a difference too whether the action taken upon the representation be taken as the representation of the party who started it, or as the representation of him who has repeated it. In the latter case he who repeated the statement, if not an agent of the one who started it, is, it seems, alone liable if he repeated it as his own, though the party who started it may have intended it for any one to act upon, who would deal with Aztti.* The fact should be remembered that this estoppel by conduct, when fully made out, operates by nature (i. a whenever it can so operate), like all other estoppels, specifically ; it gives to the party entitled the rights he would have against the one estopped supposing the representation true.^ Hence if, by reason of the better title of a third person, the party misled by the false representation has to lose what he obtained under that repre- sentation, he will stand upon a footing represented by the 1 Kinney 9. Whiton, 44 Conn. 262,270. the declaration was intended only for * Einney v. Wbiton, supra ; Quirk the person to whom it was addressed, the V. Thomas, 6 Mich. 78. party making it has assumed no obliga- * Einney v, Whiton, supra. tion to any other person. A bystander * Mitchell V. Reed, 9 CaL 204 ; who casually overhears a conversation Horn V. Cole, 61 N. H. 287. The suffi- has no right to appropriate to himself, cient answer is to be found in Einney v, without further inquiry, what was in- Whiton. See also Peek v. Gumey, tended for another.' Granger, J. in L. R. 6 H. L. 377, and Swift v. Win- Einney v. Whiton, a case of a bystander, terbotham, L. R. 8 Q. B. 244, by infer- Analogy might be found, if needed, in ence equally strong answers. ' It seenut the familiar rule in slander and libel, to us to be an unsafe doctrine to adopt, that the first publisher is not liable for that a person who gets at second-hand unauthorized repetitions. a declaration not intended for the pub- * Peek v, Gumey, L. R. 6 H. L. 877; lie and not intended for him, may act Swift v. Winterbotham, L. R. 8 Q. B. upon it as safely as the person to whom 244. These are cases of actions for de- the declaration was addressed and for ceit. whom alone it was intendeds Where * Grissler «. Powers, 81 N. Y. 67. 652 ESTOPPEL IN. PAIS. [CHAP. XVni. specific right of the estoppel Thus, if the false representation is made on the sale of a security which the seller did not own, the buyer's rights are what they would have been had there been no misconduct. They are not limited to a recovery of the consideration paid, but the purchaser will be entitled to recover what he would have received had the representation been true.^ Finally, this estoppel, arising as it does from misconduct, is not mutual, like other estoppels, and cannot be used against the party in whose favor it has arisen. It is held that a mortgagee is not estopped to deny that his mortgage debt has been paid by receiving from the mortgagor a security upon the representation that that is sufficient to meet the debt, but may show that it turned out insufficient.^ Such a case would be an estoppel upon the mortgagor if he had represented the security to be good, whereas it turned out bad. * Grissler r. Powers, 81 N. Y. 67, explaining Payne v, Bumham, 62 N. Y. 69. See also Fall River Bank v. Bnffinton, 97 Mam. 498. 2 Shepherd v. May, 115 U. S. 505. CHAP. XIZ.] ESTOPPEL BT CONDUCT : KE6UGENCE. 658 CHAPTER XIX. NEGLIGENCE WITHOUT KEPRESENTATION. Negligence in connection with false representations lias already been considered ; we have seen that in certain cases the negligence tnay supply the place of knowledge of the facts,^ and that it may generally supply the place of intention as touching the mode or the circumstances in which the i*epresen- tation was made.^ It has also been intimated that an estoppel by conduct may arise out of negligence in cases in which there has been no communication between the parties and no repre- sentation or anything equivalent to a representation, in the proper sense of that term, by the party estopped.' The class of cases here referred to, it will be observed, will exclude all such cases as those of negligently * standing by ' and seeing one's rights interfered with as the rights of another ; for there, though no language may have been used by the negligent party, the equivalent of a representation for the purpose of estoppel is left, as has been shown on a preceding page,^ and as would be seen by suggesting to the party about to be misled the existence of the right in question. What passed at the time, with the standing by, practically negatived that. It is clear, however, that cases of estoppel arising out of negli- gence without a representation must be uncommon. They can- not fall within the proposition of Mr. Justice Brett (now Lord Esher) in the well-known case of Carr v. London & North- western Ry. Co. ;• which in substance was, that one who has led another to his prejudice into the belief of a fact by conduct of culpable negligence calculated to have, and the proximate cause of, that result, will be estopped to deny the existence of 1 Ante, pp. 612 et seq. * Ante, p. 684. « Ante, pp. 612, 632. » L. B. 10 C. P. 807, 818. ' Ante, pp. 656, 612L 664 BBTOPPEL IN PAIS. [CHAP. XIX. the fact ; ^ they cannot fall within that proposition, for the prop- osition itself shows that a representation (by conduct) has been made. Estoppel by negligence has sotuetimes been thought to cover cases like Young v. Grote,* in which a man's clerk alters a completed ' check or a promissory note of his employer, by writ- ing in words in a space left blank by the signer. But Young v, Grote, assuming that it may be considered sound, stands upon ground of its own. Indeed, the ground seems to have been cut from under it altogether by the very just proposition that forg- ery is not a probable result of the repose of confidence, — a point to be referred to again presently.^ The cases which may be regarded as authority do not afford us the advantage of any positive illustration of an estoppel by negligence without representation. They only go so far as to say that unless the negligence is in the transaction itself which is supposed to raise the estoppel, or in immediate connection with the transaction, there can be no estoppel Now, in ordi- nary cases negligence in the transaction itself will amount to a repi'esentation, for the parties are face to face; and in such a case neglecting to state a fact has the effect naturally of deny- ing its existence. There is ground for thinking, however, that where the negli- gence is ' in immediate connection * with the transaction, thei« may be negligence which cannot be considered as having the effect of a representation, and yet may form the basis of an estoppel Let it be supposed that a man has been fixed with constructive notice, which by reason of his negligence has not become knowledge to him, of the existence of some right in his favor ; that this right is to his knowledge about being disposed of by another as that other^s property ; and that it is so disposed of to a purchaser for value without notice of the rights and in the absence, of the negligent party. Here would be a case of negli- gence which could hardly be treated upon the footing of a repre- ^ Ante, p. 570, i)ote,6. 248, on appeal ; and see the cases infra ^ 4 Hing. 2.53. of fraadnlent acts of agents, especially * See pp. 494, 495. Merchants of the Staple v. Bank of ^ See Vagliano v. Bank of England, England, infra, pw 65B, per Bowen, 22 Q. B. D. 103, affirmed, 28 Q. B. D. L. J. CHAP. ZIZ.] ESTOPPEL BY CONDUCT : NEGLIGENCE. 655 sentation ; ^ but would not an estoppel arise^ supposing all the other elements of it present ? The negligence would seem to possess all the characteristics of negligence having legal conse- quence ; what here follows will bear this out Where the estoppel turns upon negligence, a consideration of first importance arises, to wit, whether the conduct of the party alleged to be estopped was the proximate cause of the change of position by the party claiming the existence of to estoppel It need hardly be said that no such question can arise in cases in which the one party really intended that the other should act as he has done ; enough if the intention has been acted upon while it is still living, by the person actually or presumably meant ; enough that the intention has been accomplished. The result has been directly effected — that is the point — by the party who practised the deception. But if, instead of intention, there is only negligence, then it must be seen, by close scrutiny, whether the result has been thus directly efTected, for negligence in itself does not point to any particular result. The principle in regard to negligence having legal conse- quences appears to be this : 1. There must have been a failure to exercise that care, prudence, or diligence which a man of average care, prudence, or diligence would exercise in the case. 2. And that general proposition means specifically, (a) that the negligent person must at the time owe some duty either to the person affected by the alleged negligence or to the public of which he is one ;^ and (b) that the result, at least ^n the law of estoppel, has come about in or in immediate connection with the negligent act or omission.^ Of the general proposition it is 1 There is a difference obvious enough might at first vagaely infer that no one between the case of silence by a man else in all the world besides the other present and silence by a man absent, party to the negotiation was interested, on the point of a representation. It any such inference would at once be cannot be said that anything equivalent vitiated by the reflection attending it to a representation is left in tiie latter that absent persons could not speak, case, when there is no reason for the > Swan v. North British Co., 2 Huii. party acting to expect the absent party & £. 175, 182, Blackburn, J. in Exch. to be present ; for though the mind, Ch. ; Arnold v. Cheque Bank, 1 C. P. receiving only the impressions of the D. 578. negotiation, adverts to the blank part < Ibid. ; Bank of Ireland v. Evans of the picture (ante, p. 584), and so Charities, 5 H. L. Cas. 889 ; Coventry 656 ESTOPPEL IN PAIS. [CHAP. XIX. not necessary to speak ; it would not now be questioned. Of the specific propositions something must be said, by way of confirmation and example. The cases just cited will serve the purpose, at least for the second specific proposition, which is the one calling particularly for consideration. The first one is fairly obvious. No liability is incurred by A towards B if A is under no duty to B to refrain from negligence ; negligence in itself, though followed by dam- age, is not a wrong. The negligent party must owe a duty to the person who suffers the damage. B and C may suffer dam- age in the same way, and on the same occasion, from the negli- gence of A, yet A may be liable to the one and not to the other, and that though no contract enters into either's case. Thus, A owes a duty to keep his premises in order, in favor of a customer, e. g. B ; he owes no duty to keep them in order towards a tres- passer, e. g. C. That is, B would have a right of action against A for negligence in a state of things in which G would not. The principle is equally applicable to cases of estoppel Then we have to deal with the second of the two specific propositions ; this requires the result to have come about in or in immediate connection with the negligence,^ thereby defining, for the purpose of this estoppel, the term * proximate cause.' * It must be conceded that the rule has not always been so stated even by judges of high reputation. Thus, in Swan v. North British Co.,' a case which has been much cited, Mr. Baron Wilde in the Court of Exchequer laid down the rule in substantially the following terms : If A has led B into the belief of a certain state of facts by conduct of culpable neglect calculated to have that result, and B has acted upon that belief to his prejudice, A shall not be heard against B to show that that state of fiacts V. Great Eastern Ry, Co., 11 Q. 6. D. was this : * The negligence which would 776, C. A. ; Merchants of the Staple v. deprive the plaintiff of his right to Bank of England, 21 Q. B. D. 160, insist that the transfer was invalid must C. A. ; Vaglikno v. Bank of England, he negligence in or immediately con- 22 Q. B. D. 108, 117 ; 28 Q.B. D. 248, nected with the transfer itself.' C. A. 'On that term see especiaUy Seton 1 The proposition was first laid down «. Lafone, 19 Q. B. D. 68» CX A., af- by Mr. Baron Parke in Bank of Ireland firming 18 Q. B. D. 189 ; infra, p. 658. V, Evans Charities, supra, and has since > 7 H. & N. 608 ; 2 H. & C. 176. become classic. The language there used CHAP. XIX.] ESTOPPEL BY CONDUCT : NEGUGENCE. 657 did not exist. This, it will be noticed, is a sweeping proposi- tion of law, fixing an estoppel upon A even where his negligence was made productive of mischief by a third person, if only it was * calculated ' to effect the result. And this the Exchequer Chamber, in the same case, held not to be good law, and qualified the proposition by declaring that the neglect must be in the transaction itself and the proximate cause of leading to the change of position.^ The case itself should be stated, to make clear the rule finally declared. The facts in substance were these: The plaintiff, wishing to sell shares of his in the A Company, and also own- ing but not intending to sell shares in the B Company, was induced by his broker to give to him, for the purposes of the sale, ten blank transfers signed and sealed by himself the plain- tiff. The broker used eight of the transfers as desired, but then fraudulently filled out and forged attestations to the other two, as transfers of stock in the B Company, and having stolen the certificates delivered both the transfers and the certificates to bona fide purchasers for value. These purchasers were now reg- istered in place of the plaintiff; and the question was whether the plaintiff, by reason of giving the blank transfers to the broker, and so facilitating the fraud committed, had estopped himself from claiming the stock. The Exchequer Chamber held that he had not, on the ground that his negligence was not the proximate cause of the change of position; it was not in the transaction itself or in immediate connection with it In Arnold v. Cheque Bank ' it appeared that the plaintiffs in New York, wishing to send money to A in London, bought a draft on London payable to themselves, which they indorsed specially to A's order, and enclosed it in a letter to be posted in the usual way from their house. The letter was stolen by one of their servants and the indorsement of A forged by the thief, who now procured the defendants to present the draft and ob- tain for him the money in London. The plaintiffs sued for money had and received, and recovered, against the attempt of the defendants to maintain that the plaintiffs were estopped be- cause apart from facilitating the theft they had not conformed to 1 2 HnrL k C 175, 182. * 1 C. P. D. 678. 42 658 ESTOPPEL IN PAIS. [CHAP. XIZ. an alleged invariable custom to advise the drawees of the draft by the same or the next mail The ground taken by the court was the same as that above mentioned ; the negligence was not in or immediately connected with the transaction in ques- tion, and hence was not the proximate cause of the change of position. lu Merchants of the Staple t;. Bank of England,^ a case decided by the Court of Appeal, the plaintiffs claimed the value of cer- tain stock. The stock had been transferred by the fraudulent act of their clerk, in whom they had long reposed unlimited confidence. They had always left their seal with him ; and on this occasion he had af&xed it to powers of attorney under which the stock had been sold by the defendants, the clerk appropriat- ing the proceeds. It was held that, assuming the plaintiffs to have been negligent,' their negligence was not the proximate cause of the defendants' act ; the negligence was not in the transfer or in immediate connection with it 'The proximate cause,' said Lord Justice Bowen, ' was the felony and crime ' of the clerk, ' and it cannot be said that the felony was either the natural or likely or necessary or direct consequence of the care- lessness of the plaintiffs.' The same principle is laid down again in and illustrated by a case in which there was a representation, — the case of Setou v. Lafone,^ in which the Court of Appeal affirmed the ruling of Mr. Justice Denman.^ In 1875 goods were stored by brokers with wharfingers, for which a delivery warrant was issued. Ten years afterwards the goods were delivered by negligent mistake, by servants of the defendant who had bought the wharf and business, to persons entitled to other goods ; of which mistake the defendant did not become informed till later. In January, 1886, the warrant which had been negotiated was in the hands of a third person. The defendant daring that month wrote 1 21 Q. 6. D. 160. ' noney ordeiB (which he there depositt ' Clearly such condaot coald not he to his own credit), at least if the em- ne^ligence as matter of law. Comp. ployer has no knowledge that his clerk Fine Art 8oc v. Union Bank, 17 Q. B. has an acoonnt there ; and prohahly D. 705, C. A. , where it is held that there without any such qualification, can he no negligence in aUowing one's ' 19 Q. B. D. 68. clerk to take to the hank for deposit « 18 Q. B. D. 189. CHIP. ZIX.] ESTOPPEL BT CONDUCT: NE6UGENCE. 659 letters to the plaintiff, who had bought the business of the brokeis and carried it on in their names, informing him as presumably in- terested in the goods that the goods were in the warehouse, that no rent had been paid upon them for several years, and that if the rent due was not paid, the goods would be sold. Thereupon the plaintiff, without replying, bought the warrant and called for the goods, when the mistake was discovered. The action was for conversion, and the court held that the defendant was estopped, by reason of his negligent representa- tion, to deny that be had the goods, on the ground that his negligence was the proximate cause of the plaintiffs buying the warrant, within the meaning of the rule under consideration ; it was deemed to be in or in immediate connection with the trans- action. It was held to be unnecessary that the person making the representation should intend that the other should act upon it in any particular way.^ ^ Lord Justice Fry : 'The inquiry the condition of mind and circnm* whether the statement was the proxi- atanoes of the person to whom the mate cause does not depend on the statement was made, not of the person intention of the party making it. In who made the statement.' But his order to ascertain wheUier the statement ]ordship admitted that the case had by one person has brought about the given him trouble, action of the other, you must look at 660 BSIOPPEL IN PAIS. [chap. CHAPTER XX. WAIVEB. Besides the cases of negligence just considered, there are other estoppels, so called, growing out of conduct that cannot be con- sidered cases of representation in any legitimate sense of that term. The cases now referred to are cases of the waiver of rights, causing a change of position.* The waiver, if valid and com- plete, is sometimes said to ' estop ' the owner of the right to assert it' Thus, where by the course of conduct of one party to a contract, entitled to the performance of certain terms or conditions thereof, the other party has been led to believe, as a man of average intelligence, that such performance will not be required, until it has become too late to perform, or until to insist upon performance would work material injustice, the person who has so conducted himself is barred from asserting the right he had. It appears to be little if anything more than giving to such cases a new name to call them estoppels. The estoppel, unlike that by misrepresentation, does not rest upon ignorance of the facts by the party entitled to the benefit of it Frequent illustrations of the estoppel in question are to be found in cases of actions upon insurance policies, where the conduct of the underwriter has been such as reasonably to lead the assured to believe, until too late, that a requirement of the policy, as e. g. in regard to the proofs of loss or the prompt pay- * That kind of waiver which consists have the marks of an estoppel, by caos- merely in renoancing some right, or ing the innocent party to forego some in ratifying what one might repudiate, right or otherwise to change his pod* is, certainly, no estoppel, though it has tion. Other waivers are more properly been called such, as in Eagan Co. v. cases of election ; as to which, see Johnson, 82 Ala. 238, in the headnote chapter 21. to Wallace v. Minneapolis Elevator ^ See e. g. Ganong v. Green, 64 Mich. Co., 87 Minn. 464, and in other 488, 493 ; Insurance Co. v, Eggleston, cases. The kind of waiver capable of 96 U. S. 572, 577, infra, being described as an estoppel should CHAP. ZZ.] ESTOPPEL BT CONDUCT : WAIVER. 661 ment of the premiam or of a premiam note, will not be required. If the assured as a sensible man has really been misled, it would be a fraud upon him to insist upon the term or condition for- borne. The Supreme Court of the United States has expressed the law of the subject in a formal rule, as follows : Any agree- ment, declaration, or course of action on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be in- curred, followed by due conformity on his part, will estop the company from insisting upon a forfeiture which by the express terms of the contract might be claimed.^ And the rule may be extended to cases generaUy of agreements, actual or virtual, for the waiver by one party to an obligation or engagement of the stipulated terms of performance by the other.^ Such agreement, declaration, or course of action, if in parol, must of course, in the case of a written contract, be after the execution of the writing, otherwise it would be subject to the rule excluding parol evidence to vary a written contract;^ though there may be a waiver of preliminary facts, such as irregularities pertaining to the making of the contract, contem- poraneous with the execution of the same. Thus, if an execu- tion debtor induce one to purchase his land at the sale, it is held that he will be estopped to allege irregularities therein to defeat the purchaser's title.* Moreover, in order to be effectual against the other party the agreement or course of action must have been made with knowledge, actual or presumptive, of the essen- tial facts upon which it is founded. Thus, in the case of a life ^ Insurance Co. v. Eggleston, 96 239, 241 ; Giddens v, Crenshaw, 74 U. 8. 672 ; Insurance Co. v. Norton, Ala. 471 ; Daniels ». Edwards, 72 Ga. ib. 234 ; PhoBniz Ins. Co. v. Doster, 196 (construction put upon a lease by 106 IT. S. 30, 85 ; Insurance Co. v. Wolff, one party and acted upon with consent 95 U. S. 326. See Travellers' Ins. Co. of the other), Reyes t7. Scanlan, 63 Wis. «. Edwards, 122 U. S. 457, that conduct 845 (abandonment of homestead right), of an insurance company may supersede ' Thompson v. Insurance Co., 104 terms of the policy in regard to agency. tT. S. 252 ; Insurance Co. v. Mowry, If there has been no acting upon the 106 IT. S. 544. See also Martin v. Jer- supposed waiver, there will be no estop- sey City Ins. Co., 44 N. J. 273 ; Castner pel. Henry v. Gilliland, 108 Ind. 177, «. Farmers* Ins. Co., 50 Mich. 273 ; 180. Longfellow v. Moore, 102 111. 289. * See Longfellow v. Moore, 102 HI. ^ Youngblood v. Cunningham, 88 289; Hooker v. Hubbard, 102 Mass. Ark. 571. 662 BSTOPPEL IN PAIS. [CHAP. XX. insurance contract, if the underwriter has waived even expresslj a stipulation against residence in certain regions, the waiver presupposes that the assured has not already died there,^ and indeed that he has not already been there, unless the waiver was retroactive.' A single case out of many that might be referred to may be presented in illustration of the foregoing rule as applied to waivers of defects in the preliminary proofs of loss under an insurance policy. . The defendants being sued for a loss under a fire insurance policy issued by them, raised the objection of the insufficiency of the proofs of loss. The judge instructed the jury that though the defendants' by-laws and the conditions of the policy required certaiu preliminary proofs and notices, to be given in a certain manner, and with certain particulara and de- tails, and certain preliminary proofs and notices were given not containing all the requisites, still, if after receiving the same the defendants' officers examined the premises, and had interviews with the plaintiff before the expiration of the time for giving such notices, and neither then nor afterwards made objection to the form or sufficiency of the proofs and notices, but put their refusal to pay on other grounds, such conduct would now estop the defendants to set up the insufficiency of the same. And this instruction was sustained on appeal' Indeed, it appears to be true that if an underwriter put his objection to paying on some particular ground, such as the defectiveness of the proo£9 in some particular mentioned by him, he will be estopped there- after to raise other objections of the same nature, open to him before.* Whether this can be considered as a special example of a wide rule is not clear ; probably it is not It would not be safe to affirm that if a party to a contract which had not as yet been fully performed by the other party in two or more particu- ^ Bennecke v. Insorance Co., 105 585 ; ^tna Ins. Co. v. Tyler, 16 Wend. U. S. 855. 401 ; Miller v. Eagle Ins. Co., 2 £. D. > Insurance Co. v. Wolff, 95 U. S. Smith, 268 ; Ripley v. JEtna Ins. Ca, 826. 80 N. Y. 186 ; Clark «. New England * Blake v. Exchange Ins. Co., 12 Ins. Co., 6 Cush. 842 ; Heath v. Frank- Gray, 265. lin Ins.* Co., 1 Cosh. 257. * Cannon v. Home Ins. Co., 58 Wis. CHAP. ZX.J ESTOPPEL BY CONDUCT : WAITER. 668 lars should^ with knowledge of such fact, object to the non« performance of one, he might be considered as having waived the non-performance of the rest. He might have special reason for raising the particular objection without having it supposed that he did not intend to require performance of the other terms of the contract. A man does not lose his rights without inten- tion or facts fairly equivalent to intention. Thus, it is held that an underwriter is not estopped to assert a breach of warranty in the policy by stating another particular ground of defence, un- less the act, done with knowledge of such breach, conveyed a reasonable belief that the breach of warranty would not be alleged, and so actually misled the assured.^ In the C£ise of Tufts v. McClure^ it appeared that goods had been bought upon condition that they should be delivered within a reasonable time. Upon tender by the seller the buyer ob- jected to them for poor quality. The seller now sued for breach of the contract of purchase, and it was held that the buyer might show that the goods were not tendered within reasonable time. But in that case it is obvious that the objection first made had nothing to do with the delay of tender. The estoppel, it is certain, cannot arise in the absence of statute' unless the party against whom it is alleged caused the omission of performance. The rule of estoppel has been applied to the case of a dis- continuance by an underwriter of an agency at a particular place, where the assured had previously made payments of pre- mium, followed by notice of different places where payment was to be made and was made in subsequent years, and then by an omission of such notice, without knowledge on the part of the assured where to pay, and consequent failure to pay at the stipu- lated time. It was held under these circumstances that the assured had reasonable ground to expect the customary notice, and that the underwriter was estopped to deny liability on the policy.^ Giving notice a single time, however, would not of itself 1 Devens v. Mechanics' Ins. Co., S8 * See Easton r. Wareham, 131 Msas. N. Y. 168. See Schmidt v. Mutual Ins. 10, 12 ; ante, p. 664, note, under statute. Oa, 56 Mich. 482. * Insurance Co. v. Eggleston, 96 * 40 Iowa, 817. U. S. 672. See also McCraw v. Old 664 ESTOPPEL IN PAIS. [CHAP. 2X bind the underwriter to continue to give notice.^ Unless there is a valid agreement or duty to do so, nothing short of a settled practice of notifying the plaintiff would have that effect;^ though if an underwriter should put an end to an agency where the assured has dealt, or if the agency for any reason should cease, except by reason of war or the like, it would probably be necessary to notify the assured where to pay.' The rule that acts of an underwriter's agent in writing down statements of his own, made for the assured, bind the underwriter in the absence of fraud on the part of the assured, preventing the underwriter from alleging a breach of warranty, has also been referred to estoppel in pais.^ The question to be considered in such cases, it will be seen, is whether the conduct of the one party has had a natural ten- dency to prevent the other from doing what he has undertaken to do and has not done. Where the conduct in question con- sists in some act done by the party to be estopped, it is often difficult enough to determine whether there has been a mis- leading; where that conduct consists only in silence, the case is so very difficult that courts continually disagree in regard to its effect Some courts say in regard to insurance cases that for an underwriter to keep silent when proofs of loss are fur- nished him which are not in accord with the requirements of the contract of insurance is not misleading ; ^ for, assuming that North Ins. Co., 78 N. Car. 149 ; Chicago in need of relief. Easton r. Wareham, Ins. Co. V. Warner, 80 111. 410 ; Anrora 181 Mass. 10, 12 ; New Bedford v. Hing* Ins. Co. 9. Kranich, 86 Mich. 289 ; ham, 117 Mass. 445. Browning v. Grouse, 40 Mich. 339 ; * Insurance Co. v. Mowry, 96 U. 8. Lyon ». Travellers' Ins. Co., 65 Mich. 644. See Plott v. Chicago R. Co., 68 141. But repeated payments by one Wis. 511 ; Sweetser v. Odd Fellows town to another, even without denial of Assoc., 117 Ind. 97; that occasional acts liability, for the support of a pauper, are do not create a duty to continue them, only evidence of the pauper's settlement; ^ Phcenix Ins. Co. r. Doster, 116 they do not make an estoppel. Nor- U. S. 80. ridgewock v. Madison, 70 Maine, 174. ' Ins. Co. v. Eggleston, 96 U. S. 572. See Ellsworth v, Houlton, 48 Maine, ^ Miller v. Phoenix Life Ins. Co., 107 417 ; Weld o. Farmington, 68 Maine, N. Y. 292, 801 ; Baker v. Home life 801. It is, however, held under statutes Ins. Co., 64 N. Y. 648 ; Insurance Co. of Massachusetts, that if a town notified v. Wilkinson, 18 Wall. 222 ; and many by another town that A is one of its other cases. necessitous poor make no answer what- ' Columbian Ins. Co. v. Ijawrenoe, ever, it will be estopped to deny the set* 2 Peters, 25 ; Keenan v. Missouri Ins. tlement, though not to deny that A is Co., 12 Iowa, 126. CHAP. XX.] ESTOPPEL BY CONDUCT : WAIVER. 665 the terms of the requirement are clear, the assured knows what he must do. The underwriter, according to this view, has the right to say, ' Do what you have agreed to do, and without my help, for that I have not agreed to give.' Other courts, treating the position of the underwriter as peculiar and imposing upon him a special duty towards the assured, consider that, in view of his more intimate knowledge of what is required, he ought to object when the proofs of loss are produced, if at all, so as to give the assured opportunity to make them good.^ Certain cases in equity of expenditures made upon another's estate for the benefit of the party claiming the estoppel may be referred, perhaps, to the present subject' Thus, if without deed the owner of an estate give to another permission to expend money thereon, or encourage another to expend money upon it in reasonable reliance upon a claim in derogation of the owner's right, and knowing or being bound to know that work is going on to his prejudice,* do not interpose to prevent carrying out the same, he will not be permitted, on revoking his license as not binding by virtue of the Statute of Frauds, to appropriate to himself alone the benefit of substantial improvements,^ or, it 1 IJnthank v. Travelers' Ins. Co., 4 him before the plaintifTs were entitled Diss. 357 ; s. c. 19 Myers Fed. Dec. to possesnion, and that he thereby ac- 816 (vol. on Insurance), and cases cited, quired an equitable lien upon the Conip. the statutory cases of Easton v. goods.' The following cases were cited: Wareham, 131 Mass. 10, 12 ; New Willmott v. Barber, 15 Ch. D. 96 ; Bedford v. Hingham, 117 Mass. 445 ; Ramsden v, Dyson, L. R. 1 H. L. 129, supra, note. 141, 168, 170 ; Rennie v. Young, 2 De * See the replevin case of Fowler v, G. & J. 136 ; Wendell v. Van Rensselaer, Parsons, 143 Mass. 401. At p. 408 Mr. 1 Johns. Ch. 344 ; Niven v. Belknap, 2 Justice Field says : ' If the plaintiffs or Johns. 573 ; Pickard v. Sears, 6 Ad. ft their agents knew or believed that Lara- £. 469; Gregg v. Wells, 10 Ad. & E. bert, in good faith, claimed the goods 90 ; Dewey v. Field, 4 Met. 381 ; Hinck- as consignee of a supposed owner other ley v. Greany, 118 Mass. 595 ; Griffin than themselves, and they, believing v, Lawrence, 135 Mass. 865. themselves to be the owners, and in- * See Breeze v. Brooks, 71 Cal. 169, tending to claim the goods, stood by 182. and permitted him to pay the duties ^ Ramsden v. Dyson, L. R. 1 H. L. without disclosing their claim, and with 129, 142, 169; Grider v. Driver, 46 the intention of replevying the goods Ark. 109 ; Montgomery v. Wasem, 115 after the duties were paid, we think Ind. 343 ; Carolina R. Co. v, McCaa* that Lambert was equitably entitled to kill, 94 N. Car. 746. have the amount of the duties paid to 666 ESTOPPEL IN PAIS, [CHAP. XX. seems, to recover damages for anything done strictly under the permission.^ And assuming that the owner is perfectly aware of all the facts, including his own rights, it matters not that the party expending the money knows that he is expending it on the other's estate where permission to do so has been actually or virtually given ;^ for the case is one of actual or tacit agree- ment to forego a known right After the licensee has proceeded in good faith to do nothing more than he has received express permission to do, it would be contrary to justice to permit tlie licensor both to revoke his permission, and to appropriate the work done on his land.' Some of the courts, indeed, deny the right of the (parol) licensor even to revoke the license, after outlay under it ; resting the case on the ground of estoppel in pais, or treating the situa- tion as equivalent to part performance of a parol agreement for the sale of an interest in real estate.^ But the better view, in presence of the Statute of Frauds, appears to be that, so far as the question of further enjoyment is concerned, the license may be revoked, though no action can be maintained against the ^ Griffin V. Lawrence, 185Mas8. 865; 502, is an example of the latter case, Hedgepeth v. Rose, 95 N. Car. 41; the familiar caae of ' standing by.' That Brooks V. Curtis, 4 Lahs. 283 ; s. c. differs radically from license. 60 N. Y. 639 ; Hyde Park v. Borden, * Ante, p. 586 ; Bamsden «. Dyson, 94 111. 26 ; Wilmington Mining Co. v. I^ R. 1 H. L. 129, 140 ; MaxweU r. Allen, 95 111. 284 ; Graw v. Bayard, 96 Bay City Bridge Co., 41 Mich. 453 ; 111. 146; Danks v. Faller, 82 Mich. 8. a 46 Mich. 278; Griffin v. Law- 242 ; Wilbnr r. Goodrich,'84 Mich. 84 ; rence, 135 Mass. 865 ; Swail2 v. Swartz, Fremont Ferry Co. v. Dodge Co., 6 Neb. 4 Barr, 358 ; Cumberland R. Co. v. 18;Groton Bankv. BaUy, SON.J. Eq. McLanahan, 59 Penn. St. 28; Shef- 126 ; Holmes v. Steele, 28 N. J. Eq. field v. Collier, 8 Kelly, 82 ; Cook v. 173 ; First National Bank v. Hammond, Pridgen, 45 Ga. 331 ; Lane v. Miller, 61 Vt. 203 ; McLean v. Dow, 42 Wis. 27 Ind. 534 ; Wilson v. Chalfant, 15 610; Baker v. Humphrey, 101 U. S. Ohio, 248; Moses v. San ford, 2 Lea, 665. 494 ; Malley o. Thalheimer, 44 Conn. The licensor may be estopped by his con- 41 ; Miller v. Brown, 33 Ohio St. 547 ; duct in certain cases to object to the Alabama R. Co. v. South Alabama R. continuance of the work, as where ir- Co., 84 Ala. 570 ; Grider v. Driver, 46 reparable injury would result, and yet Ark. 109. permitted to recover damages. Logans- ^ This, it will be seen, is not the ease port v, Uhl, 99 Ind. 531, 540. of rights acquired in ignorance of a ^ See the cases cited in Maxwell v. boundary or of a title. See ante, pp. Bay City Bridge Co., 41 Mich. 458, 686 et seq., for that. The rule as stated 467 ; St. Louis Stock Yards r. Wiggins in Scbaidt v, Blaul, 66 Md. 141, 148, Ferry Co., 112 III. 384, 393 ; Fai^is 9. quoted from Casey 9. Inloes, 1 Gill, Walton, 107 N. Y. 898, 408. CHAP. XX.] ESTOPPEL BY CONDUCT : WAIVER. 667 licensee for what he has been induced or led to do. ' Volenti non fit injuria.' Another example of this sort of estoppel may be seen in Hope V, Lawrence.^ In this case the defendants were instructed, according to the plaintiff's testimony, to sell certain gold of his in their possession if it reached a premium of 217 per cent on a certain day. It did reach that point and was very firm at the time, and the defendants thought best not to sell under the circumstances, and so stated in answer to the plaintiff's inquiry on the next day, on the morning of which gold had advanced to 220. Two or three days later, gold having in the mean time fallen below 217, the plaintiff wrote to the defendants, ' I took a note of your reply [above mentioned], and determined to wait the future course of the market before writing to you.' The price of gold kept falling for several days, and the defendants sold it at 207f premium. The plaintiff now sought to hold the defendants for their fiedlure to sell at the time first mentioned The court, however, held that he was estopped, his conduct being deemed misleading.* 1 50 Barb. 25S. might have closed the gold transactioDB ^ ' The effect of the omiasion of the at 21 5^, the then market price, being plaintiff/ said Leonard, P. J. *when only Ij^ per cent below the plaintiff's he inquired the next day of the defend- limit, and involving a loss of $75 only, ants if they had sold, to notify them What the market prioe was on the 30th that his instmctions were absolute to of January, when the plaintiff advised sell (a) if the price reached 21 7, was to the defendants of his claim on them, ]>ut them into a feeling of security and does not appear ; but on the 4th day involve them in further loss if the price of February, when it was sold, the of gold continued to decline. The whole price appears to have fallen to 207f , risk of the market was on them, while the price realized. The defendants by the plaintiff enjoyed the advantage to the silence of the plaintiff had no op- accrue in case the price advanced up to portunity to elect whether to hold or or above the limit of 217. The plain* to sell the gold of the plaintiff then in tiff was aware of this if he had given their hands at their own risk as to the absolute instructions to seU at a price price, without the smallest chance of which the market had touched. His realizing any benefit for themselves, if letter shows that he knew precisely how the position of the judge at the trial is the price had advanced, and that he in- correct. But in my opinion what has tentionally remained silent to see how been remarked above as to the practl- the market would fluctuate after that, cal effect upon the rights of the defend* Had he then stated the position now ants arising out of the silence of the claimed In this action, the defendants plaintiff when he should have spoken (a) The defendants claimed that the instractions were not positive. 668 ESTOPPEL IN PAIS. [CHAP. XX. The binding force of a dedication of land to public uses by way of imperfect gift, or of acquiescence in changes of position due to supposed gift, is sometimes put upon the ground of estoppel^ This too is only a recent application of that term to a new subject ; and whether there is any significance in it, or whether it is only a term of convenience, is not clear. The only point in applying the term ' estoppel ' to the case is that the right acquired, if at all, by the public is a right to the use of the land specifically, and not a right merely in the alternative to damages, subject to the will of the late owner to revoke a gift at first imperfect It seems that in any case of dedication by gift the action of the public should be reasonably prompt The gift is not to be taken as absolute and irrevocable as soon as made. When a landowner sets apart portions of his plat for public purposes, it is done with the expectation that the use of such portions for those purposes will be advantageous to the rest of the property, or to the original proprietor. He has a right to expect that within a reasonable time the land will be put in condition to subserve those uses. If given for public buildings there must be some reasonable assurance that they will be built ; and if for ornamental purposes, that it will be made available for those. He cannot be bound to wait and abstain indefinitely from the use of his property upon the chance that some time or other, in the remote future, the public use may be secured. And his efforts to induce such acceptance and use cannot properly be regarded as anything more than repetitions and continuances of » establishes that the plaintiff is estopped from this answer that the defendants from inflicting npon the defendants any were acting on their discretion.' damage for the subsequent depreciation ^ See Baker v. Johnson, 21 Mich, in the price of gold coin. The plaintiff 319 ; Redwood Cemetery Assoc, «. should be held to assume all the risk Bandy, 93 Ind. 246 ; Beatty v. Kurtz, Qf further depreciation when he saw 2 Peters, 666 ; Hunter v. Sandy Hill, 6 that the defendants were resting under Hill, 407* These cases show that a the impression that they had missed dedication may arise out of the conduct the market by an error of judgment, of the owner of land, followed by acts He asked the reason why the defend- of others in reasonable reliance thereon, ants had not sold, and was told that For a converse case, of abandonment of the market looked strong when it was a street by a municipality, put upon the about 217, and thereupon they did not same ground, see Lee v. Mound Station, aelL It was evident to the plaintiff 118 111. 804. CHAP. XZ.] ESTOPPEL BY CONDUCT «. WAIVES. 669 his ofiTer, lequiring some responsive action. The public can only bind the landowner by acting upon his dedication before he has an equitable right to withdraw it.^ On the other hand, merely permitting owners adjoining a street to enclose a portion of it for even fifteen years will not estop the public to claim its rights therein, if nothing has been done by the municipality to induce others to act upon the belief of abandonment' In like manner, payment of a tax for five years, illegally as- sessed, and participating in an election at which a subscription for a railroad was voted, followed by issue of bonds in payment, will not estop the people of the municipality to set up the illegality of the tax.^ Indeed, evidence of passive acquiescence alone within the period of limitation, when not fraudulent or misleading, cannot have the efifect of taking away a man's property ; acquiescence, unlike estoppel, is, it must be remem- bered, only a fact tending to establish a right.^ And the same is probably true of waiver, though in the case of waiver the other facts necessary to the right are more commonly present It should be clearly apprehended of the entire class of cases now under consideration that the conduct of the party against whom the estoppel is alleged, whether that conduct be mislead- ing silence or outward action, should be treated as waiver (or acquiescence) and not as constituting a representation. Treated 1 Campbell, C. J. in Baker v. John* my R. Co., 29 N. J. Eq. 811 ; Hamlin stoD, 21 Mich. 319, 845. See also Lee v. Seara, 82 N. Y. 327 ; Lorentz u. Lo- r. Lake, 14 Mich. 12. rents, 14 W. Va. 809. Farther, con- * Sol berg v. Decorah, 41 Iowa, 601 ; oeming ^acquiescence as working 'es- Sheen v. Stothart, 29 Ija. An. 630. In toppel,' see ante, p. 457 ; Steadman 9. Gilbert v. Manchester, 55 N. H. 298, a Taylor, 77 N. Car. 134 ; Kent v. Quick- way had been held out by the defendant fdlver, 78 N. Y. 159 ; Atlantic R. Co. town for thirty years as public, and it v. Robbins, 85 Ohio St. 531 ; Quinlan was held that the defendant was es- v. Myers, 29 Ohio St. 500 ; Miller v, topped to say that it was not a public Brown, 88 Ohio St. 547 ; Young r. Babi- Btreet. Ion, 91 Penn. St 280 ; Scott v. Strawn, * Cameron v. Stephenson, 69 Mo. 85 Penn. St. 471 ; Watt's Appeal, 78 373. See also Landon v. Litchfield, 11 Penn. St. 370 ; Grand Trunk Ry. Co. 9. Conn. 251 ; Cmger «. Dougherty, 43 Dyer, 49 Vt 74 ; Sims v. Chattanooga, N. Y. 107, concerning payment of taxes 2 Lea, 694 ; Broyles v. Nowlin, 3 Baz- vrithout objection. But see Ives v. ter, 191 ; Hoyt v. Sprague, 108 U. 8L North Canaan, 33 Conn. 402. 613 ; McClore v. Lewis, 72 Mo. 314. * See e. g. Williamson v. New Jer- 670 ESTOPPEL IN PAIS. [CHAP. ZX. as waiver it is immaterial that the party claiming the estoppel knew the facts ; waiver is not only consistent with, it is gen- erally created upon knowledge of, all the facts by both parties Treated as a representation the case would fall under the other head of estoppels by conduct, and knowledge by the party ally- ing the estoppel would be fatal. This difference between the two estoppels is founded upon difference in subject-matter, to be seen in the fact that in the present case parties are openly and expressly dealing with known rights ; in the other case a secret concealed right is brought forward against one who has been led by the party originally owning it to believe that that one has acquired it He has not acted in good faith if he knew the facts.^ There is a further difference in principle between the two classes of estoppel, growing out of the same difference in subject- matter. We have seen that in the case of concealed rights or titles pure silence may be misleading and so raise an estoppel* That proceeds upon the ground that the light or title is un- known to and withheld from the person acting. In the present case, however, the facts are known to him as well as to the other party ; it should accordingly require more to make out the es- toppel than in the other case. There should be some clear and decisive act or conduct, beyond silence, to work the waiver, as we have seen in regard to waiver of proofs of loss under policies of insurance. The party claiming the benefit should in this case as much as in the other show that he has been misled into the confidence reposed ;' and pure silence by the one party in regard to a right perfectly known to the other can rarely mis- lead a man of average intelligence, by whose probable action the case must of course be judged.^ If, then, the act of the party claiming the waiver was purely voluntary, with full knowledge of the other^s rights, and no act or conduct of the latter, beyond mere silence, induced the ex- ^ Quoted in MoLoin v. Baliner, 49 ^ The diitiDction argned (m the an- Ark. 218, 226, 226. thor knows) and sustained in Fowler v. 3 Ante, pp. 6S4 et seq. Panons, 148 Haas. 401, 406, 407 ; Mc- s See Lewis «l Champion, 40 N. J. Lain v. Buliner, 49 Ark. 21S. £q. 69, 62. CHAP. XX.] ESTOPPEL BT CONDUCT : WAIYEB. 671 penditure or other change of position, there 'will be no estoppel ; to 'stand by and see/ though enough iu a case of concealment, is not ordinarily enough here.^ In Atlanta t^. Grate City Gas Go. it appeared that a gaslight company had obtained a charter from the legislature to use the streets of Atlanta for its pipes and fixtures, and the city authorities 'stood by and saw' the company make heavy outlays in the execution of their powers, without intimating that objection would be made to the use of the streets for the purpose in question. Without such use not only could not the enterprise be prosecuted, — the outlay would be lost. It was held, however, that the city was not estopped to object to the laying of the pipes.^ But this comes very near to the 'misleading silence' of the authorities.' How strong and decisive the act supposed to create the waiver must be does not appear, and probably could not be stated in the way of a general rule, further than this, that the act or conduct of the party to be estopped must be such as would be apt to mislead a prudent man in a case where there is much risk Some of the decisions appear to have gone a ques- tionable length against the waiver. In Kelso's Appeal * it ap- peared that a married woman entitled to dower of lands about to be sold said to one who thereupon bought, * I make no claim to dower, and don't intend to. You needn't hesitate a mo- ment on that account' It was held that she was not estopped to set up her dower rights against the purchaser. Tlie ground of decision is not stated ; probably it was that the party to be estopped was not sui juris.^ If it proceeded upon the ground of 1 Ramsden v. D78OD, L. R. 1 H. L. * 102 Penn. St. 7. 129 ; Maxwell v. Bay City Bridge Co., ^ See ante, p. 599. The coart said, 46 Mich. 27S ; Atlanta v. Gate City Gas * The case presents some strong equities Co., 71 Ga. 106; Allen v. Kellam, 69 in favor of the appellant' On the other Ala. 442 ; Stockman v. Riverside Co., hand, it is held that an owner of land 64 Cal. 57 ; Gawtry v, Leland, 40 N. J. entitled to demand prepayment of land Eq. 323. to be taken under eminent domain by * But comp. Athens v. Georgia Ry. a railroad company will be estopped to Co., 72 Ga. 800, where, however, the claim the right by allowing the conn acts themselves were contrary to a mu- pany, with his knowledge, to constmct nicipal ordinance. And see- Atlanta v, the road on his land and make large Word, 78 Ga. 276 ; Aogosta v. Port outlays of money in improvements. Royal Ry., 74 Ga. 65S. New Orleans R. Co. 9. Jones, 6S * Ante, p. 584. Ala. 48, citing Trenton R. Co. v. 672 ESTOPPEL IN PAIS. [CHAP. XX. a promiiBSory representation,^ the answer would be that such ground applies only to the case of concealed rights ; cases of waiver are commonly in their nature promissory, as the above- mentioned insurance cases, among others, show.^ In ordinary cases it appears to be necessary, to make a waiver effective, that the party claiming it (or his predecessor in right) should have been led to act upon the facts going to make up the waiver, to his detriment* But in certain cases this is not required ; mere word of mouth there seems to be enough, as e. g. where, after the maturity of a promissory note, an indorser, with knowledge that his liability has never been fixed, promises to pay the note.^ But such cases are probably to be considered as exceptions ; unless the ' waiver ' really amounts to an elec- tion (of which in the next chapter), the facts should, it seems, be acted upon or there should be a consideration.^ Such cases at all events should not be called estoppel Chambers, 9 N. J. £q. 471 ; McAaly ties. Thus, in Mason v. Mason, 101 V. West Vermont By., 8S Vt. Sll. Ind. 25, it is held that marrying and But that is only a matter of the time of living with a divorced woman as wife payment. for two years, when at the time of mar- ^ Ante, p. 574. rying her she was under judicial inhibi- * This ground of waiver is perhaps tion to marry, to the husband^s knowl- the most satisfactory one upon which to edge, estops him, on a suit by her for explain cases of the destruction of a deed divorce from him, to deny the validity by the grantor for the purpose of enab- of the marriage. ' But the soundness of ling the grantor to convey to another such cases is not clear, party, consenting to the arrangement. ' Henry v. Gilliland, 103 Ind. 177, The first grantee is said to be estopped 180. to claim against the second, at least if ^ Sigerson v. Mathews, 20 How. 496. the first deed was not recorded. Law- * The facts may be acted upon in rence v. Stratton, 6 Cush. 163 ; Hoi- many ways. ' A citizen of another brook V, Tirrell, 9 Pick. 105 ; Com- state, who proves his debt in the course monwealth p. Dudley, 10 Mass. 408 ; of proceedings under a state insolvent Howard v. Massengale, 13 Lea, 577 ; law, which could not constitutionally ante, p. 578. The estoppel must of course bind him without his assent, cannot be in pais, by conduct ; it cannot be by afterwards impeach the validity of the misrepresentation ; it maybe by waiver, certificate of discharge granted n^>on . for it is an agreement in effect not to those proceedings, except as allowed by assert a right known (in law) to both that law.' Gray, J. in Burpee v. Spar- parties, hawk, 108 Mass. Ill, 114, citing Clay There may be still other cases in v. Smith, 8 Peters, 411 ; Oilman r. which an estoppel will arise with full Lock wood, 4 Wall. 409 ; Journeay v» knowledge of all the facts by both par- Gardner, 11 Cush. 855. 8E0T. I.] QUASI-E8T0PPEL : ELECTION. 678 C. QUASI-ESTOPPEL. CHAPTER XXI. ELECTION AND INCONSISTENT POSITIONS GENEBALLT.^ § 1. Election, A PARTY cannot either in the course of litigation or in deal- ings in pais occupy inconsistent positions.' Upo^ that rule election is founded; 'a man shall not be allowed/ in the language of the Scotch law, * to approbate and reprobate.' ^ And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts ; ^ the election, if made with knowledge of the facts, is ^ It may be doubted whether this Comer, 80 Ala. 833 ; Jones v. Clouser, subject properly belongs to the law of 114 Ind. 387. estoppel. Still, it has come to be so ' In re Ghesharo, 81 Ch. D. 466, 478, generally treated as a phase of estoppel Chitty, J. that we have not felt at liberty to omit ^ Steinbach v. Relief Ins. Co., 77 it. See Strosser v. Fort Wayne, 100 N. Y. 498 ; Fields ». Bhind, 81 N. Y. Ind. 443, 452. Indeed, it is perhaps 239 ; Scholey v, Rew, 23 Wall. 831 ; well to bring together the scattered Rodermund v. Clark, -46 N. Y. 354 ; fragments of the law having a resem- Morris v. Rexford, 18 N. Y. 552. See blance to election, and give them a com- Meyer v. Clark, 45 N. Y. 286 ; Sncces- mon name. The right in all these sion ofMonette,26Lia. An. 26 ; Weedon cases, including that of election, is spe- v, Landreaux, ib. 729 ; Connihan v. cific, and therefore so far like estoppel. Thompson, 111 Mass. 270 ; Watson v. Hence, the name ' election * not having Watson, 128 Mass. 152 ; Lilley v. met with favor beyond its old limits, Adams, 108 Mass. 50 ; Sloan v. Hol- we venture to name the whole gronp of comb, 29 Mich. 158 ; Ennzie v. Wixom, cases ' Qoasi-Estoppel.' 89 Mich. 884 ; Walsh v. Yamey, 88 s Strosser v. Fort Wayne, 100 Ind. Mich. 78 ; Thompson v. Howard, 81 448, 452 ; Daniels v. Teamey, 102 Mich. 809 ; Stoddard v. Cntcompt, 41 U. S. 415 ; Moshier v. Frost, 110 111. Iowa, 829 ; Lee v. Templeton, 78 Ind. 206 ; Lehman v. aark, 85 Ala. 109 ; 815. Rabitte v. Orr, 88 Ala. 185 ; Espy v. 48 674 ESTOPPEL IN PAIS. [CHAP. XXL in itself binding, — it cannot be withdrawn without due consent; it cannot be withdrawn though it has not been acted upon by another by any change of position. 'Electio semel facta, et placituni testatum, non patitur regressum.' * Quod semel placuit ill electionibus amplius displicere non potest/^ The phases in which this doctrine is presented are extremely various ; in the present connection we treat of those only which arise out of court, reserving for chapter twenty-four the con- sideration of the subject in its relation to the conduct of causes. The subject may be considered fii'st, with reference to the facts requiring or permitting an election ; and secondly, with reference to the facts constituting an election. With regaikl to the facts which require an election the most familiar statement of the doctrine is found in the law of wiUs.^ It is laid down (rather too broadly, it seems) as an old rule of equity tliat a person who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the same, and he will not be permitted to set up any right or claim of his own, however legal and well founded it may other- wise have been, which would defeat or in any way prevent the full operation of the will.* Thus, if a man devise to A property 1 Coke, Litt. H6. See e. g. Kinney 29 Cal. 837 ; Collins v. Woods, 63 IlL V. Kiernan, 49 N. Y. 164 ; Syme v. 285 ; Oorham v. Dodge, 122 111. 628. Badger, 92 N. Car. 706 ; Mendenhall There is reason to doubt, however, as V. Mendenhall, 8 Jones, 287 ; Jones v, the text intimates, whether the rale G^rock, 6 Jones, £q. 190 ; Yorkly v. shoald be stated so broadly. In Wol- Stinson, 97 N. Car. 236, 240 ; 1 Bige- laston v. Ring, li. R. 8 £q. 165, 174, low. Law of Fraud, 486. yice-Chancellor James, a great equity '^ The doctrine applies to deeds as judge, says that the later cases do not well. 2 Story, Equi^, § 1077, note ; justify the rule to the extent in which § 1080. it was formerly laid down. He says • Whistler u. Webster, 2 Ves. Jr. 867; that the rule to be deduced from the Board v. Board, L. R. 9 Q. B. 48 ; (English) cases is that election is to be Jacobs V. Miller, 50 Mich. 119, 126; applied between a gift under a will and Hyde v. Baldwin, 17 Pick. 803 ; Cox a claim dehors the will and adverse to r. Rogers, 77 Penn. St. 160 ; Wise v, it ; it was not to be applied between Bhodes, 84 Penn. St. 402 ; Thellusson one clause in a will and another clause V. Woodford, 18 Yes. 209 ; Church- in the satne will. ' It would seem,' says man v. Ireland, 1 Russ. & M. 250 ; Tib- he, ' a very strange thing that in con- bet ts V, Tibbetts, 19 Yes. 655 ; Brown v. struing the same instrument the court, Ricketts, 8 Johns. Ch. 558 ; Etchebome dealing with a clause in which a fund V, Auzerais, 45 Cal. 121 ; Noe v. Spli- is expressed to be given partly to A aad valo, 54 CaL 207 ; Morrison o. Bowman, partly to B, should hold that, the gifk SECT. I.] QUASI-ESTOPPEL : ELECTION. 676 which belongs to B, and, by the same will, give to B his own (the testator's) estate, B must cfcnvey his property to A, or he cannot take the property devised to him under the will, except upon the footing of making compensation to A, out of the property which B takes by the will, but not beyond, what A would have received under the will.^ The only question in such a case is, Did the testator intend (judging from the face of the will) tliat the property should go in such a manner? It is immaterial whether the testator thought he had the right, or knowing the extent of his rights intended by an arbitrary ex- ercise of power to exceed them ; in either case the party accept- ing the gifts of the will can only take the property on the terms, or the equity of the terms, upon which it was given.* Married women ^ and infants ^ may bind themselves by elec- tion ; though neither perhaps could do so before the right accrued upon which the election was to be made. At least it is held that a married woman cannot bind herself by electing between a jointure and dower ; only a widow can do that.^ A more diffi- to A being void, the testator's inten- It is held in the case just cited, against tion is that B should take the whole ; a dictum in Wilson r. Townsend, 2 Ves. and then coming to another clause in 693, 696, that the rule of compensation which another fund is given to B, and applies only to elections against the wil), no mention of A at all, it should hold not to elections to take under it. that there is an implied condition that > Ker v. Wauchope, I Bligh, 1, 25 ; B should give back part of that which Upshaw v, U pshaw, 2 Hen. & M. 381 ; it was the testator's intention that he Whistfer v. Webster, 2 Yes. Jr. 367, should take.' 870 ; Wilson v. Townsend, ib. 696 ; The rule against claiming under and Blake v, Bunbury, 4 Brown, Ch. 25. against a will at the same time will not The estoppel extends to privies. Row- prevent one to claim under the will so ley v. Towsley, 58 Mich. 829, 340 ; far as to recognize that the executors Merrick's Estate, 5 Watts & S. 9. thereunder have the lawful administra- > Barrow v. Barrow, 4 Kay & J. 409, tion of the estate, and to deny that the 419 ; Griggs v, Gibson, L. B. 1 Eq. 685; provisions of the will in disposing of Codington v. Lindsay, L. R. 8 Ch. 578 ; the property are valid. De Mora v, Willoughby v. Middleton, 2 Johns. & Concha, 29 Ch. D. 268, 805, affirmed in H. 844 ; In re Chesham, 81 Ch. D. 466, House of Ix>rds nom. Concha v. Concha, 472 ; Tieman v. Boland, 15 Penn. St. 11 App. Cas. 541. 429. 1 1 Jarman, Wills, 443, 4th ed. The * Stoning v. Borren, 55 Barb. 595 ; role of equity in reganl to such cases is In re Chesham, 81 Ch. D. 466, 472, that of compensation to the disappointed 478. donee, not of forfeiture by the donee * Frank v. Frank, 8 Mylne k C. 171t who keeps his own. In re Chesham, 81 178, 179. Ch. D. 466, 475, 2 Story's Equity, § 1086. 676 ESTOPPEL IN PAIS. [OHAP. XXL cult question has arisen where, in the case of an election by a married woman, the only propeVty with which the person disap- pointed by her election can be compensated is subject to a re- straint upon anticipation by her. Formerly the authorities were in conflict ; Lord Hatherly holding in one of the cases already cited ^ that there could be an election in such a case, and Sir George Jessel holding the contrary,' on the ground that to per- mit election would be to defeat the restraint upon anticipation. This view has now prevailed.' In the case first cited a marriage settlement settled a fund for the ^ife with restraint upon antici- pation and a covenant by her, then an infant, to settle property acquired afterwards. The covenant was of course void, unless the doctrine of election could be invoked. It was held that the wife was not bound to elect between taking after-acquired prop- erty and her interest under the settlement, but could hold both. This doctrine of election is never applied in the law of wills when, if an election is made contrary to the will, the interest which would pass from the testator by the will cannot be laid hold of in equity to compensate the disappointed donee. Some free disposable property must be given to the electing donee which can become compensation for what the testator sought to take away.^ And the doctrine further becomes difficult to apply when the testator has a partial interest in the property to be dealt with by the first donee.^ In such cases the court will in- cline to a construction which would make him deal only with his own, and thus prevent the necessity of an election. But where a testator entitled to only part of an estate uses words in devising it which clearly show that he intended to pass the en- tirety, the owner of the other part, if he receives a bounty under the will, is put to his election.^ And it matters not in any case 1 Willooghby v. Middleton, 2 Johns, that if the donee has no interest in that & H. 344. out of which the compensatioQ must be ^ Smith V. Lucas, 18 Ch. D. 531. made if at all, as where the gift is of * In re Vardon, 81 Gh. D. 275 (re- heirlooms of which he is in lawful en- versing 28 Ch. D. 124) ; In re Wlieatlej, joyment, there is no case for an election. 27 Ch. D. 606 ; In re Glanvill, 31 Ch. » Ranclyffe v. Parkyns, 6 Dow, 149, D. 582, C. A. 186. * Bristow V. Warde, 2 Ves. Jr. 386 ; • Padbury v. Clark, 2 Macn. & G. Box V. Barrett, L. R. 3 £q. 244. See 298; WUkinson v. Dent, L. B. 6 Ch. In re Chesham, 31 Ch. D. 466, holding 89. SECT. I.] QUASI-ESTOPPEL : ELECTION. 677 that the testator supposed that he owned or had the power to dispose of the property in question if the fact were otherwise.^ The intention to dispose of particular property by will must appear from the will itself/"* And accordingly a mere general devise cannot be shown aliunde to have been intended to cover property which did not belong to the testator, where the object of the evidence is to put the donee to an election.^ So election may be excluded by an expression of intention by the testator that only one of several gifts to a donee shall be conditional on his giving up what the testator attempts to devise away from him. If, for instance, a testator has two sons, the elder being owner of a particular piece of land, and it should appear con- venient to the testator that this piece should go to the younger son along with other property which he is devising to him, and he devises accordingly, then if among other gifts to tlie elder son he should give him a piece of property which the will states to be in lieu of the particular piece to be given by the elder to the younger son, the elder would be put to an election merely between these two pieces of property, and could hold the other gifts absolutely.* In cases, however, where the intention to require an election is clear, there (notwithstanding the common-law doctrine that when a devise confers no more than the law of descent would cast upon an heir he takes by descent) a devise giving what would fall to the devisee upon intestacy may put the heir to his election. In contemplation of equity the testator means, as in other cases, that if the condition of giving up the heir^s estate be not complied with, the disappointed donee shall have out of the estate over which the testator had power, a benefit correspond- ing to that of which he is deprived by the action of the heir.* Tlie necessity of election arises similarly where a testator or other donor gives his own exclusive property to another with certain burdens attaching to it, upon condition that the donee 1 Stamp V, Findlay, 2 Rawle, 16S, 544 ; 8. c. 8 Yes. Jr. 884, 521 ; Pole v. 174 ; 1 Jftrman, Wills, 445, Bigelow*8 Somen, 6 Yes. Jr. 809, 884. ed. « Wilkinson v. Dent, L. R. 6 Oh. < Clementson v. Gaudy, 1 Keen, 839, 841. 809. » Welby v. Welby, 2 Yee. k B. 187, * Oayan v. Darlington, 2 Yes. Jr. 190. 678 ESTOPPEL IN PAIS. [CHAP. XXX. shall take subject to the burdens. In such a cose the donee must elect whether he will take the property at all or not If he take it, he must take it cum onere.^ If, however, no such condition be annexed or implied, the donee may elect that part of the bounty which will be of benefit to him, and reject the burdensome pait, supposing the two are separable.* Again, where a man having power to appoint a fund to A, which in default of appointment is given to B, exercises the power in favor of C, and gives other benefits to B, in such a case though the appointment to C may be void, yet if B accept the benefits given him, he must convey the estate to C according to the appointment.^ So where a person having power to appoint to two, appoints to one only, and gives a legacy not under the power to the other, a case for election arises^ And the same is true where a person having a power of appointment attempts to delegate the same to another, and by the same instrument makes a gift to the object of the power ; such person is put to an elec- tion. He cannot retain the benefit and also claim the property against the execution of the power thus improperly delegated.^ With regard to what requires an election in the case of dower, the intention to put the widow to an election must at common law be clearly expressed, or the gift to her must be so incon- sistent with the right of dower as to render the intention of the testator unequivocal^ But this rule has been changed by statute in many states, and the widow required to elect unless the will shows that the testator intended that she should have both estates, — dower and the estate given by the will. Indeed, the widow may in some states elect to take under the will, and yet contest other parts of it.^ 1 Talbot V. Radnor, 8 Mylne & K. Higginbotham v. Cornwell, 8 Gratt. 88; 252 ; Scholey v. Rew, 23 Wall. 881. Shaw v. Shaw, 2 Dana, 842. ^ Moffett 9. Bates, 8 Smale & G. ^ In a late case in Ohio (Carder v. 468. Fayette Co., 16 Ohio St. 853) arising < Sngden, Powers, 578, 8th Eng. ed. under statutory law the Supreme Court « Ibid. 589. says : ' We hold that the election of the * Ingham o. Ingham, 2 Atk. 88. widow to take under the will does not * Bull V. Church, 5 Hill, 206 ; 8. c. estop her from contesting the will, deny- 2 Denio, 480 ; Savage v. Burnham, 17 ing the validity of its devisea, or setting N. Y. 561, 571 ; Lord v. Lord, 28 up her claims as heir. She can do all Conn. 827 ; Fulton v. Fulton, 80 Miss, or either of these without having her 586 ; Braxton v. Freeman, 6 Rich. 85 ; election set aside. Her right to elect i> SECT. I.] QUASI-ESTOPPEL : ELECTION. • 679 In regard to the question what constitutes an election, it is held in general that any decisive act done by a person with knowledge of his rights and of all other facts material to him is binding.^ Thus, one who takes possession of property under a will, and holds and manages it for a long time, and especially if he sell the whole or part of it, will be considered to have made a binding election to accept that property upon the terms of the will.3 It becomes a difficult matter, however, in some cases to determine what action of this sort amounts to an election. In Fitts V. Cook ^ it was held that no election had been made. A the creatare of statutory law, and we benefit of the widow wonld become a most look to the statutes creating it means to entrap her, and would ren- alone for the estoppel it is to work, der her right uncertain and impracti- These statutes make her election to take cable. Such is not the law. If there is under the will a bar to dower, and to no valid will, there is no valid election her distributive part of the personal and of course no estoppel or bar. And estate due to her as widow, and to it matters not whether the invalidation nothing else. A contrary reading of takes place before or after the election, the statutes would in many instances or at whose instance it takes place. It result in the greatest injustice to her. is only in the event that the document She is compelled to make an election, probated becomes or remains established and is only allowed one year for that as a valid " will " that her election can purpose. The heirs may contest the have any eifect whatever ; and when will or not at their discretion, and they snch is the case, the effect of the elec- are allowed two years in which to com- tion is confined to her rights as widow^ roence the contest. The widow must and cannot reach her rights as heir to complete her election within one year, property not effectually and legally dis- and the heir must begin his contest in posed of by the will. The will and its two years. How can the widow know devises and bequests to other persons at the time of making her election stand unaffected by her election either whether there will be a contest ! And to take or to refuse its provisions in her if she could know that, must she at her favor. The whole effect in the one case own peril predetermine the rights of the is to destroy her rights as widow, and parties thereto ? There would be no in the other to destroy her rights as de- safety to her in snch a construction of visee or legatee, and in their place to the law. She might validate the will give her the rights of the widow of an by an election, and the heirs invalidate intestate.' it by a contest. It wonld then seem ^ Connihan v, Thompson, 111 Mass. to be a will as to her, and no will as to 270 ; Rodermund v. Clark, 46 N. Y. them. On the other hand, should she 854 ; Sanger v. Wood, 3 Johns. Gh. decide that the will was invalid and 416 ; Littlefield p. Brown, 1 Wend, would be set aside, and therefore de- 898; a. c. in error, 11 Wend. 467; cline to take under it, the will might Barwick v. Rackley, 46 Ala. 402. ultimately be established and she be ^ Upshaw v. Upehaw, 2 Hen. k M made to lose all benefit, however great, 881. of its provisions in her favor. Thus, * 5 Cush. 596« an election which was intended for the 680 * I28TOPPEL IN PAIS. [CHAP. XXI. testator had devised to his son Obed lands of which he was only tenant by the curtesy; and he devised to his wife the use during life of a third part of all his real estate and the right of occupy- ing such part of his dwelling-house as might best promote her convenience and comfort, and also various articles of personal property. The residue of his property he gave to his children (including Obed), who were also the heirs at law of his wife. The will was proved without objection ; and the widow and children continued to live together on the estate without making any division or setting off dower. The widow having died, the children continued long afterwards upon the premises without change. Her heirs now claimed the land devised to Obed ; and he contended that they were estopped to repudiate the wilL The court held, however, that no election had been made to take under the wilL^ On the other hand, it has been held in Ohio that where, in ■ ^ Mr. Justioe Dewey, in delivering a departure from what would have heen the opinion of the court, said : * it is the legal rights of Joanna Cook without not inconsistent with Joanna Ck>ok'8 the will that little can he inferred from [the widow's] l^gal rights, and a pres- her suhsequent use of the property in ent purpose on her part at a future day the manner set forth in the agreed to assert her right to the land of which statement. . . • The further fact re- she was seised in her own right and in- lied upon in the statement, that Obed dependent of her hushand. Take the Cook purchased of Fitts and wife [the facts as stated. All the other lands plaintiffs] about a year since, their in- were occupied by Obed as well as those terest in the furniture which was de- which are the subject of controversy, vised by Gad Cook, does not prove any But the will gave Joanna Cook one acceptance of the will or assent to the third part of the real estate. She did same. Whether it was the property of not set off this one third. Things Joanna Cook or property of the estate being left in this loose state, and none of Oad Cook, upon the death of Joanna of the parties exercising rights adversely Cook, it might naturally be divided to each other, it will not do to draw in- among the children who survived her ferences from these acts that shall oper- and be made the subject of a sale of an ate as an estoppel against parties sub- undivided interest therein. Indeed, the sequently setting up legal rights to the whole circumstances stated as to the use lands thus occupied. To authorize such of the property after the death of Gad an estoftpel the conduct of the party Cook are consistent with a family ar- should be manifestly inconsistent with rangement among themselves to live to- the rights now claimed. Estoppel in gether during the life of Joanna Cook, pais only arises when manifest justice and all to participate in the property, and equity as respects the interest of without any special reference to the another require its application. In will or to the devise therein of property looking at the provisions of this will belonging to Joanna Cook.' it will be seen that they are so little SECT. I.] QUASI-ESTOPPEL : ELECTION. . 681 case of a devise of real estate to a widow for life, with remainder in fee to one of the testator's sons, the widow, without following the form prescribed for making her election to take under the will, set up no claim for dower, but in fact acted under the will and had the use and occupancy of the premises for a series of years, she was estopped to deny that she had elected to take under the will.^ In Dewey v, BeU^ the plaintiff as indorsee sued the defendant as maker of a promissory note. It appeared that the defendant had executed the note in question for the purpose of renewing a former note, and that his agent carried the note to one Way (who as indorser of the prior note, had taken it up), desiring him to take this latter note in exchange for and payment of the earlier one. Way stiid he would take it as collateral to the first note, and the agent assented and left the note with him. Way now indorsed the last note and procured it to be discounted, and it finally came into the hands of the plaintiff. The court held that when Way procured the note to be discounted, he estopped himself from saying that he had not taken it for the purpose for which it had been made. It operated as a payment of the prior note ; and the plaintiff was therefore entitled to recover.^ ^ Thompson v. Hoop, 6 Ohio St. 480, trary. It is plain that both notes can- oYerruling Stilley v. Folger, 14 Ohio, not be enforced rightfully against the 610. See Stockton v. Wooley, 20 Ohio present defendant. The plaintiff must St 184, 189 ; W^inship v, Winship, 43 fail in one of the two pending actions. Ind. 291. If the acceptance of the second note be * 5 Allen, 165. not treated as payment of the first, by a * A very similar case was subse- negotiation of the second to a bona fide quently tried before the same court, holder for value before maturity the de- and with a like result. Hooker v. Hub- fendant might have been rendered liable bard, 97 Mass. 175. ' We cannot dis- on both. To avoid this unjust result tinguish this case,' said Foster, J. in and prevent the plaintiff from accom- delivering the judgment, ' from Dewey pllshing a successful fraud to the injury V. Bell [supra]. The note of November of an innocent person, the just and equi- 14 was given for no other purpose than table principle of estoppel is invoked, to renew and pay the one of earlier date and the plaintiff is held to be forever now in suit. The plaintiff knowing this bound by that construction of the trans- fact ha'i no right as against this defend- action according to which alone it was ant to take it except in payment. Hav- rightful. Dewey v. Bell is precisely ing elected to take it and enforce it by like this case, with this exception : suit, the law conclusively presumes that there the negotiation of the note given he took it for a rightfnl and not an ille- in payment had actually taken place, gal and fraudulent purpose, and the. The commencement of a suit on the plaintiff is estopped to allege the con* renewal note is an equally decisive act 682 ESTOPPEL IN PAIS. [CHAP. XXL In this connection a recent case in New York may be no- ticed.^ In that case it was held that where a husband hians money and takes a note therefor payable to the order of himself and wife, and afterwards makes a will containing a devise or bequest to the wife by its terras to be accepted and received in lieu of dower and of all claims upon the estate ; if the note re- mains unpaid at the time of his death, and she survives, she acquires title to the note as avift and not as a part of his estate at the time of his death, and she is not put to her election be- tween the note and the provision for her in the will, but is enti- tled to both. And it was further held that the fact that she had given the note to the appraisers as part of her hi.sbaud's estate was not conclusive (though it was evidence tending to show that she had released to him her right of survivorship) and did not estop her from claiming the note, in the absence of evi- dence that the position of any party had been changed in conse- quence, or that any transaction was had in reliance thereon. In the case of Smith v. Smith ^ an action was brought for breaking and entering a close. The defendant claimed title under a deed from the father of the parties, who by his will had devise 14 Gray, 532. not accept it for the purpose for which * But the grantee of land conveyed it was made.' See Hill v, Hackahee, by an intestate with intent to defraud 70 Ala. 183, 188. his creditors is not estopped by taking SECT. II.] QUA8I-EST0PPEL : ELECTION. 683 It will be found upon an examination of these and other cases that wherever the rights of other parties have intervened, or the rights of the party alleging the estoppel have been otherwise affected, by reason of a man's conduct or acquiescence in a state of things about which he had an election, and his conduct or acquiescence, or even laches,^ was based on a knowledge of the facts and of his rights,^ he will be deemed to have made an effectual election ; and he will not be permitted to disturb the state of things, whatever may have been his rights at first^ But the mere institution of a suit by a legatee to contest a will, if the suit is withdrawn, is not an election ; * nor is mere acqui- escence or waiver without consideration, not amounting to an election, binding if a change of purpose will not affect the rights of others.^ And of course the consent or acquiescence must have been made understandingly, sometimes even of the party's rights under the law.^ § 2. Inconsistent Positions generally. Upon a principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claiming ander the deed and acting upon it to facie evidence of an election. See 1 object as one of the creditors of the es- Bigclow, Law of Fraud, 437. tate that the deed was fraudalent. Nor- ^ See Ripley v. ^tna Ins. Co., 80 ton V. Norton, 5 Gush. 524. N. Y. 136, 164 ; Cruger v. Dougherty, 1 Williams V. Allison, 38 Iowa, 278. 48 N. Y. 107 ; Landon v. Litchfi Thus, a party ac- tively affirming a transaction such as a contract or a purchase, by receiving and retaining money upon it, is estopped thereafter to deny the force of any of its express or implied *terms or con- ditions.^ In the case of the Water Witch the consignees of a cargo of freight libelled the ship in which it had been carried for damage to the goods ; and the owner of the ship at the same time libelled the cargo for freight and primage. The causes were heard together; and the court held that by receiving the 1 Pickett V, Merchants' Bank, 82 Sonnebom, 118 N. Y. 428 ; Albany v. Ark. 846; Frienon v. Branch, 30 Ark. Waterv^Liet Tump. Co., 108 N. Y. 14 ; 458. Seneca v. Allen, 99 N. Y. 582, 589 ; * See School District v. Atherton, 12 Michigan Ry. Co. v. Mellen, 44 Mich. Met. 105 ; Mitchell v. Horton, 76 Iowa, 821 ; Sutton's Appeal, 112 Penn. St. 271, 277. 598 ; Elinesmith v. Socwell, 100 Ind. * Damonth v. Elock, 29 Mich. 289 ; 589, 592 ; Hill v. Nisbet, ib. 841 ; aty "Wobum V. Henshaw, 101 Mass. 108 ; Bank v. Bartlett, 71 Ga. 798 ; Pike o. McClure v. Commonwealth, 80 Penn. St Stallings, ib. 860 ; Breeding v. Stamper, 167 ; Harbin v. Bell, 54 Ala. 889. See 18 B. Mon. 175 ; Coleman v. Pike, 88 Mitchell V. Horton, 75 Iowa, 271 ; Erekel Ala. 826 ; Monis v. Hall, 41 Ala. 510 ; V, Krttchbauro, 71 Iowa, 702, 706; Koth- Smith v. Sheeley, 12 Wall. 858; Phillips Duin V. Markson, 84 Kans. 542 ; Love- v. Rogers, 12 Met. 405 ; Sherman o. man v. Taylor, 85 Tenn. 2 ; Reichert v. McKeon, 88 N. Y. 266 ; Wood v. Seely, VoRS, 78 Ga. 54 ; Atkinson v, McDonald, 32 N. Y. 105 ; Requa v. Holmes, 26 74 Ga. 360; Union Ins. Co. v, Slee, 123 N. Y. 838 ; Horton c. Davis, ib. 495 ; lU. 57 ; ante, p. 552. Light v. St. Louis Ry. Co., 89 Mo. 108; * Jacobs V. Miller, 50 Mich. 119, 126; Bush v. Bush, ib. 860; Patterson v. Da Bose v. Ball, 64 Ga. 350 ; Robinson Read, 43 N. J. Bq. 18 ; Warrenton «. V. Pebworth, 71 Ala. 240, 247 ('you shall Arrington, 101 N. C. 109 ; Ish r. Crane, not be heard to claim both nnder and 8 Ohio St. 520 ; McArthur r. Home Life against the same title ') ; Butler v, Assoc., 78 Iowa, 336 ; Chicago R. Co. O'Brien, 5 Ala. 316 ; Morris v. Hall, 41 v, Knuffke, 36 Kans. 867 ; Hawthorne Ala. 510 ; McReynoldsr. Jones, 30 Ala. v. E&st Portland, 13 Oreg. 271. See 101 ; Swanson v. Tarkington, ff Heisk. also Terrell t;. Giimmell, 20 Iowa, 893 ; 612 ; Williams v, Gideon, ib. 617; Em- Hewett v. Currier, 63 Wis. 886. But mons V. Milwaukee, 32 Wis. 484 ; State it may appear that the money was not V. lianger, 29 Wis. 68. See Robyv. accepted in the character supposed. Chicago, 64 111. 447. Board of Education o. Bakewell, 122 III 5 Water Witch, 1 Black, 494 ; Flani- 889. gan V, Turner, ib. 491 ; New York r. SECT. II.] QUASI-ESTOPPEL : ELECTION. 685 cargo, carrying it to the consignees, and then libelling it, the owner was estopped to deny the ship's liability to deliver the cargo in the same order in which it was received, with the usual exceptions. A decree was therefore given in favor of the con- signees for so much as the damage to the cargo exceeded the amount of the freight. Though a contract be in fact wholly invalid when executed, still (supposing it not to be prohibited by law as relating to some illegal transaction), if it be acted upon afterwards by the parties to it «s valid, they will, if sui juris, be estopped there- after to allege its invalidity.^ Thus, if a tax-collector act under his official bond, he, and his sureties also, if they do not object at the proper time, will be precluded from denying the validity of the bond.' So too if a party sui juris not only take but retain the benefits arising from an invalid sale or contract, he wiU be precluded in a contest with the other party upon the contract from repudiating it* So to accept money as redemp- tion of property estops the party to deny the payor's right to redeem.* And to receive bonds in payment for land taken for a highway estops the receiver to say, contrary to the under- standing of the parties, that the location was not permanent.* In like manner, persons who have received preferred stock in a corporation, and have for several years'accepted interest thereon, * Quoted, Henderson v. Price, 96 v. McGookey, 38 Ohio St. 555 ; Henry N. Car. 423, 426 ; Eobinson v. Peb- Co. v, Winnebago Drain Co., 52 III. worth, 71 Ala. 240, 247. See ante, pp. 454 ; Planters' Bank v, Merritt, 7 459, 465, 652 ; post, p. 686. Heisk. 177; Fitch v. Baldwin, 17 Johns. 2 McLean v. State, 8 Heisk. 23 ; 161 ; Rapelee v. Stewart, 27 N. Y. 810 Coleman v. Pike, 88 Ala. 326 ; Coons v. Kodermund v. Clark, 46 N. Y. 854 People, 76 III. 883. Hone v. Henriques, 13 Wend. 240 « Walker v, Mulvean, 76 111. 18 ; Palmer v. Smith, 10 N. Y. 803 ; Duff Padfield i;. Pierce, 72 111. 500 ; Deford v. Wynkoop, 74 Penn. St. 800. See V, Mercer, 24 Iowa, 118 ; Pursly v. Haydock r. Coope, 53 N. Y. 68 ; Tuite Hays, 17 Iowa, 810 ; Rennick v. Bank v. Stevens, 98 Mass. 305 ; Murray v, of Chillicothe, 8 Ohio, 529 ; Vicksbnfg Jones, 50 Ga. 109. The ca.se of a corpo- R. Co. V. Ragsdale, 54 Miss. 200 ; Lee ration acting beyond its powers stands on V, Gardiner, 26 Miss. 521 ; Byrne v. a special footing ; receiving and retain- Hibemia Bank, 31 La, An. 81 ; Factors* ing benefits would not prevent it from Ins. Co, V. De Blanc, ib. 100 ; Southard tei'mviintinq the contract. Oregon Ry. V. Perry, 21 Iowa, 488 ; Hoffmire v. Co. v. Oregonian Ry. Co., 130 U. S. 1. Holcomb, 17 Kans. 878 ; Bryan p. Dps • Ooddsrd v. Renner, 57 Ind. 532. Moines, 51 Iowa, 590 ; Union Ins. Co. * Alley «. Adams Co., 76 III. 101. 686 ESTOPPEL IN PAIS. [CHAP. XXI. cannot object to the power of the corporation to issue the same> when the holders of the common stock, and parties who have guaranteed the interest, make no objection.^ However, the estoppel arising from accepting the benefits of a contract applies only when the party may accept or reject without serious incouAenience. A railroad company could not forego the use of its entire track because it has a dispute with some contractor about extra compensation under his contract for the building, e. g. of one of its bridges ; the bridge must be used, and the company will not be estopped by using it to object to defaults in the performance of the contract, though known to it all the time.* Nor will the receiving an indirect benefit from a transaction, it seems, if without the party's own procurement, have the effect to preclude him from denying the validity of the transaction.' And in general, when the position in question has been practically forced upon a party by his opponent's conduct, he will not be bound to stand by it.* Nor, perhaps, when one with full knowledge of the invalidity of his act executes a con- tract with another, will the fact that the latter receives benefits from it estop him from denying its validity.* An estoppel arises also, in the absence of mistake, against a person who collects or receives money for another to deny his own authority to take the money or the right of the other to receive it, so long, at all events, as no superior title is set up in anybody else ; ^ unless he claimed the money or part of it. when he received it as belonging to him, e. g. as dues.^ Thus, it has been held that one cannot set up the invalidity of a statute in 1 Branch v, Jesup, 106 U. S. 468, Iheria v, Serrett, 81 La. An. 719 ; Key- 481. In regard to accepting and re- ser r. Simmons, 16 Fla. 268; Monis ©. taining the subject of a sale, see ante, State, 47 Texas, 583 ; Grattan v. Metro- p. 467, 552, 658, 685. politan Ins. Co., 80 N. Y. 281 ; Perry- * Cincinnati v. Cameron, 88 Ohio St. man v, Greenville, 51 Ala. 507; Hunger- 836, 874. See Zottman v, San Fran- foni v. Moore, 65 Ala. 282. See Hull Cisco, 20 Cal. 97 ; Smith v. Brady, 17 v. Pleasant Valley, 41 Iowa, 494 ; Reed N. Y. 178; Ellis v, Hamlin, 8 Tannt. 52 ; v. Peterson, 91 HI. 288. Bartholomew v. Jackson, 20 Johns. 28. ^ United States v. Lawson, 101 U. S. * Ayresr. Probasco, 14 Kans. 175. 164; United States r. Ellsworth, ih. * Potter V. Brown, 50 Mich. 486. 170. Even paying the money into the * Black ». Dressell, 20 Kans. 158. public treasury will not bar the claim * Cairns v, G'Bleness, 40 Wis. 469 ; upon it if that were done at the com- McEee v. Montrrey Co., 51 Cal. 275 ; map'! of n superior officer. Ibid. SECT. II.] QUASI-ESTOPP£L : ELECTION. 687 bar of an action for money which he has collected for the plain- tiff under such statute.^ So one assuming to act in a contract as principal will afterwards be estopped to say that he was in fact acting only as agent.' A stockholder in a corporation who has participated in the transactions of the company and received dividends or benefits will also be estopped when sued under the charter to set up the invalidity of the same.* And conversely, after attacking a transaction and failing, the party so doing may not be allowed to turn round and claim rights under it.^ In like manner, if one without actually inducing another to act in a particular way, assent to the thing done and seek to derive a benefit from it, he cannot in case of disappointment deny the validity of the act assented to.^ Thus, if a man offer himself or consent to appear as a candidate for office at an elec- tion held with his assent at an unauthorized voting-place, he will be estopped, if defeated, to say that the election was invalid because the voting was at the wrong placa* Thus far of the effect of retaining or seeking benefits. That is only a special phase of the rule concerning inconsistent positions. Some other phases of the subject may also be noticed. It is held that a landlord who has wrongfully severed fixtures from the realty is estopped to take advantage of his act and treat the fixtures as goods for the purposes of a distress. So it was laid down in Dalton v. Whittem.^ This was an action of trover for ' certain goods and chattels, to wit, two metal counters,' etc. On the trial it appeared that the articles referred to were fixtures attached to a house of which the plaintiff was tenant under the * Pftiryman v. Greenyille, 51 Ala. 507 ; Morrifl v, Stote, 47 Texas, 583. s Reigard v. McNeil, 88 111. 400. > Wheclock v. Kost, 77 111. 296 ; McCarthy «• Lavasche, 89 111. 270, citing Baker v, Brannan, 6 Hill, 47 ; Embury v. Conner, 8 Comst. 511 ; Easton v. Aspinwall, 19 N. Y. 119; Mead «. Eeeler, 24 Barb. 25 ; Ferguson V. Landram, 5 Bush, 230. See also Peo- ple V. Sterling Manuf. Co., 82 III. 457 ; Bice V, Rock Island R. Co., 21 IlL 93 ; Goodrich 9. Reynolds, 81 111. 490. * Ewing V. Cook, 86 Tenn. 832, 842. The court did not lay down any posi- tive rule that attacking a transaction would debar one, in case of failure, from claiming rights under it That would probably be too strong a state- ment. ' Quoted with approval in Field v. Doyou, 64 Wis. 560, 564. • People V. Waite, 70 111. 26. 7 3 Q. B. 961. See Zwietuseh « Walkius, 61 Wis. 615. 688 ESTOPPEL IN PAIS. [CHAP. XXI. defendant, and that they had been severed in a distress for rent, and disposed of. For the plaintiff it was contended that the fixtures could not be taken under a distress for rent Counsel for the defendant admitting this contended that for such taking trespass was the proper remedy, and that the plaintiff could not bring trover without waiving the tortious severance and treating the articles as chattels. But the court held the action proper.^ On the other hand, one who buys property as personalty cannot repudiate the sale (in the absence of fraud or mistake) by asserting that the property is realty.^ In like manner, where a municipality levies an assessment to pay the compensation fixed and approved by it for laying out or improving streets, it cannot afterwards refuse to pay the money to those entitled, on any ground of prior dedication' or of irreg- ularity in its own action.^ Nor after the money has been paid over, or the benefits appropriated without objection,^ can the landowner allege that the work was done in violation of law, in the absence at least of evidence of mistake or ignorance of the facts on his part when he took the money or had the benefits.' Generally speaking, perhaps the levying and enforcing pay- ment of taxes by sale of property estops the municipality or state to claim the property.^ But a municipal corporation is 1 Mr. Justice Coleridge said in sab- 128, 131, showing that silence in these, stance : The plaintiff says that the ar- as in • other cases, without a duty to tides are now goods and chattels, and speak is not enough alone to raise the therefore trover lies ; but the defend- estoppel. ants have wrongfully made them such, * Hartshorn v. Potroff, 89 111. 509 ; and may not defend their distress by an Oe v. Yellowhead, 80 111. 208; Town unlawful act. It was like the case of v. Blackberry, 29 111. 137. See Rees money had and received, where the v. Chicago, 38 111. 322. But entering a plaintiffs goods had been wrongfully private drain into a city sewer, and taken and sold. The action to a certain agreeing to make no claim against the extent assumed the legality of the sale ; city for damages on account of the work, but still the plaintiff might say that the will not estop the party from objecting property was not in the vendor. to an assessment for laying the sewer. 3 Reed v, Peterson, 91 111. 288. Sheehan v, Fitchbuiig, 131 Mass. 523. * Princeton r. Templeton, 71 111. 68. ? American Emigrant Co. v. Iowa ^ Bloomington 9. Brokaw, 77 111. Land Co., 52 Iowa, 328 ; Audubon Co. 194 ; Higgins v. Chicago, 18 111. 276. v. American Emigrant Co., 40 Iowa, * Taber v. Ferguson, 109 Ind. 227 ; 460 ; Simplot v. Dubuque, 49 Iowa, Union Ins. Co. v. Slee, 123 111. 57; 630 ; Adams Co. v, B. AM. R. Ca, 89 Corry v. Gaynor, 22 Ohio St. 584 ; Rec- Iowa, 507 ; Brandriff •. Harrison, 50 tor 9. Board of Improvement, 50 Ark. Iowa, 164. SECT, n.] QUASI-ESTOPPEL : ELECTION. 689 not estopped to claim property belonging to it where it has been improperly sold for taxes as the property of a person who had no title to or possession of it,^ or where no one's rights will be wrongfully affected by repudiating the sale ; as where the pur- chaser knew of the claim of the corporation.' In Bossire v, Boston, which was a writ of entry, the city of Boston, defendant, had become absolute owner of the land in question by virtue of a mortgage (which had been foreclosed) and the expiration of the equity of redemption ; and the city had been in possession ever since the foreclosure. Before the equity of redemption had expired the land had been conveyed to one Pond, and the asses- sors had taxed it as his and sold it as his for non-payment of the taxes. The demandant derived title from the purchaser. Judg- ment was given for the tenants. The ground taken by the court was that the assessors and collector were not to be regarded as mere private agents of the city,' and their acts in the premises therefore were not binding on the city. A remarkable case, to be received with hesitation, may now be noticed. Il has been laid down that persons who have procured the passage of an act of the legislature under which they have acted and obtained benefits are estopped to show that the act was unconstitutional, ^ though it may have been bo 1 Ronsire v. Boston, 4 Allen, 57. Colnmbus, 39 Ohio St. 281 ; Motz v. s Howard Co. «. Bullis, 49 Iowa, 519. Detroit, 18 Mich. 526 ; Todd v. Kerr, See Buena Vista Co. v. Iowa Falls R. 42 Barb. 817 ; People v. Murray, 5 Co., 46 Iowa, 226 ; Bixby v. Adams HiU, 468 ; Van Hook v. Whitlock, 26 Co., 49 Iowa, 507. Of course the mere Wend. 48 ; Lee v, Tillotson, 24 Wend, assessment of a tax creates no estoppel 887 ; Barlington v. Gilbert, 31 Iowa, npon the mnnicipality to claim the 356 ; B. C. R & M. R. Co. v. Stewart, property. Page Co. v. R & M. R. Co., 89 Iowa, 267 ; Tallant v. Burlington, 40 Iowa, 520. Nor will mere suit to set ib. 548 ; Mitchell v. Horton, 75 Iowa, aside a conveyance of land by a mnnici- 271. In ordinary cases, however, per- pality estop it to tax the land pendente haps generaUy where benefits have not lite. American Emigrant Co. v. Iowa been appropriated and retained by the Land Co., 52 111. 828. party seeking to deny the constitution- *. Walcott V, Swampscott, 1 Allen, ality of the law, there can be no es- 101 ; Buttrick v. Lowell, ib. 172 ; Kim- toppel to deny the validity of a statute, ball v. Boston, ib. 417. South Ottawa v. Perkins, 94 IT. S. 260 ; * Ferguson v. Landram, 5 Bush, 230 ; Counterman v. Dublin, 88 Ohio St. 515, A. 0. 1 Bush, 548 ; Daniels v, Teamey, 517 ; Tone v, Columbus, supra; State v. 102 U. 8. 416, 421 ; Vose v. Cockcroft, Little Rock R. Co., 81 Ark. 701. 'There 44 N. Y. 415, 424. See also State «. can be no estoppel,* says the conrt i'ti Mitchell, 81 Ohio St 592; Tone v. South OtUwa v. Perkins, supra, 'in 44 690 ESTOPPEL IN PAIS. [CHAP. XXI. pronounced by the courts concerning those who had not partici- pated in its passage.^ In the case referred to it appeared that a large portion of the people of Gallatin County, Kentucky, had met in the year 1864 and resolved to raise $20,000 to be used as a fund to avoid the draft for soldiers. They appointed a committee to obtain an act of the legislature authorizing the county to issue bonds for the amount mentioned, and to levy a tax to pay the money. The money was borrowed ; the volun- teers were obtained; an act of the legislature was procured authorizing the proceedings ; the bonds were issued ; and the tax was levied. Certain parties who had aided in obtaining the act now prayed an injunction to restrain the collection of the tax ; but the prayer was refused.' the way of ascertnining the existence syth, 2 How. 202 ; Clay v. Smith, S of a law. That which purports to be Peters, 411 ; Backlin «. Backlin, 97 a law of a state is a law or is not a law Mass. 256 ; Morse v. Lowell, 7 Met. according as the truth of the (act may 152. The cases contra, as e. g. Kimberly he, and not according to the shifting «. Ely, 6 Pick. 440, have been oyermled. circumstances of parties.' But this is The rule would probably be the same if not said of persons who had procured no dividends were received or if the the passage and received and retained claims were rejected altogether. That, the benefits of a law. And perhaps there however, would be on the ground of m may be other exceptions. See e. g. Dan- judicata. See ante, p. 81. iels V. Teamey, 102 U. S. 415, 421; ' 'Upon what principle of exalted Strosser v. Fort Wayne, 100 Ind. 443, equity,' said the court, ' shall a ni«B 452. It is held that a tax-collector can- be permitted to receive a valuable oon- not set up the invalidity of a statute in sideration through a statute procured bar of an action for money which he by his own consent, or subsequently has collected for the plaintiff under such sanctioned by him, or from which he statute. Ferryman v. Greenville, 51 derives an interest and consideration, Ala. 507. and then k^p the consideration and 1 Ferguson v. Landram, 1 Bush, 548. repudiate the statute as unoonstitu- The case under consideration, it will be tional ? Suppose five hundred citizens seen, is not one of misrepresentation, in- of Gallatin County had come together volving the rights of innocent parties and by written agreement authorized who have acted thereon, but virtually a certain gentlemen as their agents to question between agent and principal, borrow $20,000 to be used for raising After one has submitted claims to volunteers to prevent themselves and decision under a statute, and the claims relatives from being conscripted, is have not been withdrawn but have been there any doubt that those loaning the passed upon, and especially if dividends money could recover it by personal have been accepted, one cannot allege action from them ? ... If they could the unconstitutionality of the statute, then bind themselves personally and Foglerv. Clark, 80 Maine, 237 ; Daniels collectively without a statute, but to V. Teamey, 102 U. S. 415, 421 ; Gilmaa render the collection more aeoure^ lev V. Lockwood, 4 WaU. 234 ; Baldwin o. uncertain as to the recipients, and more Hale, 1 Wall. 228 ; Chapman v. For- equitable, they should agrees instead of SECT, n.] QUASI-ESTOPPEL : ELECTION. 691 A similar doctrine has been held in respect of one who had joined in a petition for the opening or improvement of a street ; such a one will, it is said, be afterwards estopped to allege that the levy of a tax to pay for the improvement was unauthorized on the ground that the number of abutters required by law did not join in the petition.^ This position is not generally ac- giving their personal obligations, to pro- for them, and after appointing that cure an enactment to compel each one agent, by what rule of law or ethics could to contribute according to the amount they be permitted to repudiate their of his property, and constitute the agent and deny their responsibility to county court their agent to determine those who may have loaned the money ? this, and have the proper assessment All persons who were themselves liable made and coUected from each, by what to draft, or had minor sons or slaves bo rule of equity or law should they be per- liable, divided an actual valuable con- mitted to withdraw their assent to this sideration by the avoidance of the draft, assumed liability and agency, though and hence are liable. Those who par- it be evidenced by a statute instead of a ticipeted in the procurement of the law, mere personal contract ? ... In pro- or afterwards voluntarily ratified it, can- curing this money and obtaining with not be heard now to object, especially it volunteer soldiers these men violated such as had relatives liable to be con- no law of morality or of government scripted ; because having voluntarily Their contract was not void for want of waived this constitutional benefit, they consideration or for illegality ; but it is shall not be heard to set it up after the the meara by which the sum for its re- money is procured, the volunteers ob- imbursement is to be raised that they tained, and the war ended.' assail. Whilst the borrower and lender ^ Burlington v. Gilbert, 81 Iowa, of money at usurious rates both violate 356. People v. Goodwin, 6 N. Y. 671, law, of course there is neither consider- and Kellogg 17. Ely, 15 Ohio St. 66, were ation nor estoppel as to the usurious cited in support of the doctrine ; but it loan ; but if the borrower induces a may be doubted if they are in point. In third and innocent party to take the re Sharp, 56 N. Y. 257 ; Tone v, Co- note, he is then estopped, because his lumbus, 39 Ohio St. 281, 298, denying conduct becomes fraudulent as to this Burlington v. Gilbert, supra. See also third party. . . . Suppose the legal Gilroore t;. Fox, 10 Kans. 509. Joining voters of a town should petition the in a petition for a public improvement, legislature to grant a charter for a man- accepting an appointment as an officer ufacturing company, authorize them to to hold an election of commissioners for organize it by electing officers, and con- carrying it out, and requesting the mu- fer on them the power to borrow a given nicipality to assume payment of bonds sum to be reimbursed by the levy of an in aid of it, were held to estop the party annual tax, and that each should have to object to the validity of an assessment stock according to what he paid of this on his property to pay for the same, in tax ; whilst this statute would be clearly Ferson's Appeal, 96 Penn. St. 140. invalid and unenforceable against such Acquiescence by property owners for as neither petitioned nor voted for the seven years in proceedings taken for an- officera, yet as to such ns did, very differ- nexing tenitory, and voting meantime ent considerations and questions would for officers of the municipality, who con- arise. For after voluntarily asking the tract debts for carrying out the improve- legislature to provide by law an agent ments involved in the matter, are held 692 BSTOPPEL IN PAIS. [CHAP. XXL cepted.^ It has well been declared that citizens who have petitioned for the making of an improvement have still the right to assume that things will be done lawfully, that they are not bound to take notice of illegal proceedings on the part of the municipality, and therefore are not estopped by their silence to object to them.' In accordance with the Kentucky doctrine one who as a member of a corporation advocates or votes ^ for an assessment which is made will be estopped to deny the validity of the same, so far as that turns upon mere irregularity; though it is not enough to show his mere presence at the meeting * Upon the same principle persons who petition a tovni to let a contract for certain work cannot object to the levy of a tax to pay for the work by alleging irregularities in the contract when the facts were known by them at the time and passed without objection.* But it is held that a landowner on whom an assessment for the extension of a street has been laid under the statute is not es- topped to petition for a jury tp revise the assessment by reason of his having asked for an apportionment thereof under the same statute.^ So too one who did not assent to irregularities in proceedings for which one petitioned may assert them aftei^ to estop the owners from asaeiting the for yalne ; while here it is between the invalidity of the business. I^gansport municipality and its own citizens, — 9. La Rose, 99 Ind. 117, 132. See also between agent and principal. Hickling v. Wilson, 104 111. 64. * But see Strosser r. Fort Wayne, An error in the proceedings of a body 100 Ind. 443, 445. committed at the instance of a party and * Ridgefield v. Reynolds, 46 Conn, in his favor cannot afterwards be set up 375 ; Thatcher v. People, 98 111. 632 ; to impeach the validity of such proceed- Cross v. Kansas, 90 Mo. 13. The buf- ings. Scott V. Board of Commissioners, den is u])OU the person alleging the 101 Ind. 42. estoppel to show the other party's ac- ^ Steckert v. East Saginaw, 22 Mich, tive favor of the assessment. Ridge- 104 ; Tone v. Columbus, 39 Ohio St. field i^. Reynolds, supra. 281, 298. See Greencastle v. Black, 5 ^ Patterson v. Baun)er, 48 Iowa, 477 ; Ind. 557 ; Strosser v. Fort Wayne, 100 Kellogg v. Ely, 15 Ohio St. 64 ; Motz v. Ind. 443, 446 ; Hightower v. Overhaul- Detroit, 18 Mich. 495. ser, 65 Iowa, 347. • Gardner v. Boston, 106 Mass. 649. V Cases just cited ; In re Sharp, 56 See also to the same effect Nicodemus N. Y. 257. The analogy of the cases in v. East Saginaw, 25 Mich. 456 ; Stock- the Supreme Court of the United States, ert v. East Saginaw, 22 Mich. 104 ; In re ante, p. 876, is by no means complete, Sharp, 56 N. Y. 257 ; Canfield v. Smith, for the contest in them was between the 84 Wis. 881 . See further Damp v, Dane, municipality and innocent purchasers 29 Wis. 419. SECT. II.] QUASI-ESTOPPEL : ELECTION. 698 wards.^ And it has lately been held by the Supreme Court of the United States that a municipality is not estopped to ques- tion the constitutionality of an act authorizing it to tax its citizens even after having acted under the law for one year.^ Many of the cases upon this subject, it will be noticed, are simply cases of ratification or acquiescence;' and it is a ques- tionable use of terms, as we have seen,* to apply the word 'es- toppel ' to them. A few more cases will serve to enforce this observation. Thus, if heirs of age join in a deed of quitclaim with a trustee of the ancestor's real estate, to complete title made by a previous deed executed by the trustee, it is said that they will thereafter be ' estopped ' from contesting the validity of that earlier deed.^ So if a man assent with kno\riedge of the facts to the appropriation by an officer of the law of moneys, arisiqg from a judicial sale, he will be estopped thereafter from objecting.' Taking proceedings to enforce a contract amounts also to a conclusive recognition of the validity of the contract,^ until such proceedings, at all events, are discontinued.' So if one perform acts required to be done by a written instrument purporting to be signed by him, he will be estopped to deny his execution of it* On the other hand, a corporation is not estopped to sue upon the bond of its treasurer for unfaithful- ness and misappropriation of funds by having accepted the report of an auditing committee which approved his accounts, or by malting a report founded thereon to the legislature.^' Nor are supervisors estopped by auditing and paying part of a claim to dispute the party's right to the rest, though 1 Taylor «. Burnap, 39 Mich. 789. Hebert, 87 La. An. 165, Tatification ; s Loan Aasociation v, Topeka, 20 Wray v. Davenport, 79 Ya. 19, acqui- WalL 655. escence. * See also Frick v, Trastees of * Ante, p. 456. Schools, 99 111. 167, long acquiescence ; * Vallette v, Bennett, 69 111. 682. KimbaU v, Lee, 40 IT. J. Eq. 403, ac- • McConueU «. People, 71 111. 481. quiescence ; Perry o. Cheboygan, 65 ' Metropolitan By. Co. o. Chicago Mich. 250, acquiescence ; Waldron v. B. Co., 87 III. 817. Toledo Ry. Co., ib. 420, acquiescence ; * Comp. State v. Adams, 71 Mo. 620. Skinner r. Grace Church, 54 Mich. 548, * Boggs v. Olcott, 40 111. 808. ratification ; Proskaner v. People's Say. ^ Lexington B. Co. v. Elwell, 8 Bank, 77 Ala. 267, laches; Bark v. Allen, 871. See DunneU Manof. Co. Sinionson, 104 Ind. 178, acquiescence, v, Pawtacket, 7 Gray, 277* with change of position ; Sewall v. 694 E8T0PPBL IN PAIS. [CHAP. XXI. this involves denying the validity of the payment already made.^ So i'ar as the term ' estoppel ' is used as a synonyme in such cases with 'bar' or 'preclusion/ there is no gi^eat objection to its use ; ^ the objection to using it in cases of ratification and the like is that it is misleading, fiatification and acquiescence sup- pose the existence of something incomplete in regard to its legal consequences ; hence they cannot be a kiTid of estoppel in them- selves. At most they are but facts which may serve to supply something otherwise wanting to an estoppel.' 1 People V. New York, 1 Hill, S62. terms of a written contract. Thus, it ia * S<^e Meyer v, Mitchell, 75 Ala. 475, sometimes said that by contracting with for 8uch a use •£ the term, in regard to persons jointly the other party ia e»- firaud. topi)ed to treat them as severally liable^ * The term ' estoppel ' has also been Sprigg v. Bank of Mjb. Pleasant, 10 Pe- applied to mere questions of the admis- ters, 257 ; 8. o. 14 Peters, 201. See ■ibiUty of parol evidence to vary the also Cos v. Thomas, 9 Gratt. 812. PART IV. PKOCEDUBE. PART IV. PEOCEDUEK CHAPTER XXII. PLEADING THE ESTOPPEL. It has been an unsettled point in practice whether the estop- pel of a record or of a deed is available if not pleaded. It was said in one of the leading cases ^ that the judgment of a court of competent jurisdiction was as evidence conclusive ; while in another leading case' the doctrine was maintained that the estoppel of a record was removed by the failure to plead it, and that the jury were in such a case at liberty to find accord- ing to the truth of the matter. And the same position was taken in an earlier case^ by Lord Coke in regard to the estoppel of a deed. In this case, an action on a bond, that great judge said : ' The obligee in pleading cannot allege the delivery before the date . . . because he is estopped to take an averment against anything expressed in the deed ; yet the jurors, who are sworn to say the truth, shall not be estopped because they are sworn to say the trtUL' The whole doctrine that a record or deed should be pleaded in order to the estoppel appears to have been founded on this case ; and the tendency of both the English and the American courts seemed for a long time to be towards this position.^ But ^ t>nche88 of Kingston's Case, ante, * Ooddard's Case, 2 Coke, 4. p. 91. ^ See notes to Duchess of Kingston's ^ Vooght V. Winch, 2 Barn. & Aid. Case, 2 Smith's L. C, Am. ed. ; Foye 662. V, Patch, 1S2 Mass. 105. So still in. 698 PBOCEDURE. [chap. XXII. whatever may have been law in Lord Coke's time, it has well been said that the jurors are not in modem times sworn to say the truth, but a true verdict to give according to the evidence} And as the learned writer referred to further says, it is indeed difficult to see in what nianner the oath of a juror can be op- posed to the rule that a record shall prevent the party against whom it is offered in evidence from producing other evidence to controvert it ; and that all the evidence being thus one way, namely, with the record, the jury (by reason of their oath) should not be bound to give their verdict for the party with whom all the evidence is, and against the party with whom there is no evidence.^ This seems sufficient to overturn the rule in Goddard's Case, and with it the many cases holding tiie same position on both sides of the Atlantic. The tendency of the decisions has also been strongly the other way since Mr. Smith's work was published, especially in America.' The fioLil- 0ome States. Meiss v. Gill, 44 Ohio St. Duchess of Kingston's Case, 'that the S5S; Fanning «. Insurance Co., S7 Ohio cases of Yooght v. Winch [supra] and Si. 844; Burlington «.Merohants' Bank, Doe v. Huddart [2 Cromp. M. 4 JEL 68 lowa^ 848. See Crawford v, Nolan, 816] are by no means at Tarianoe with 70 Iowa, 97, 99 ; infra, p. 701. And the doctrine of De Qrey, 0. J. viz., that see Everest k Strode, Estoppel, ch. 11, a judgment on the aame point between where the English practice is intelli- the same parties is in pleading a bar, in gently stated. evidence conclusive. And it is sub- ^ It should he remembered, however, mitted that the true meaning of this is that the transition into the modem jury that it is conclusive as a plea whera system had not been fully accomplished there is an opportunity of pleading it» in the time of Lord Coke, and that but that where there is no such oppor- under the system which had previously tunity, then it is conclusive as evidence ; eadsted jurors were themselves witnesses, and that Yooght v. Winch and Doe v, and toere sworn as such to speak the Huddart merely decide that a party truth. 2 Beeves*8 Hist. English Law, may waive the benefit of an estoppel, 164, 640, note (FinL ed.); 8 ib. 806, and that he elects to waive it by not note. pleading it when he has an opportunity ' Mr. Smith's note in his Leading of doing so.' This distinction has often Csaes to the Duchess of Kingston's been suggested ; but it does not go Case. far enough. The only consistent rule * See note of American editors to against the estoppel would be to ex- Duchess of Kingston's Case, 2 Smith's elude evidence of it altogether when an L. C. ; Foye i^ Patch, 182 Mass. 106 ; opportunity to plead it was not availed Insurance Co. v. Harris, 97 U. S. 831, of ; a course required by statute in some 886 ; Fowlkesv. State, 14 Lea, 14. Mr. of the states. Wood v, Ostmm and Smith himself thought that the English Ransom o. Stanberry, infra ; Greaves o. cases might be reconciled. * It is sub- Middlebrooks, 69 Ga. 862 ; Burlington nitted,' he says in his note to the B. Co. v, Harris,. 8 Neb. 140 ; Hanson v. CHAP. ZXTT.] PLEADING THE ESTOPPEL. 699 ure to plead specially may properly on the general principles of pleading prevent a party from giving evidence on the point; but if the evidence be admissible, there is no good reason why the jury should not be required to accept the conclusion of law concerning it. It is well settled at common law that an estoppel in pais need not be pleaded ; ^ but this rule has been changed by statute in some of the states.^ The effect of the statutes, however, is not to declare that the facts when not pleaded should be found according to the truth, but that they are inadmissible in evi- dence.' In any case, however, if the estoppel be pleaded, it should be pleaded with certainty.^ Nothing will be supplied by intendment in favor of an alleged estoppel ; if room is left for inference, that will be against the estoppel.^ In Virginia it is held that a replication of estoppel is neces- sary where there is a special plea in defence ; while if the gen* eral issue has been pleaded, the estoppel need not be pleaded in reply.^ But questions of pleading the estoppel turn so much upon statutes or local practice that general rules cannot be laid down with safety. It is enough for the present to say in gen- Chiatovich, 18 Ney. S95. See, farther, Bloant, 77 Mo. 285, 242 ; Hammer- Krekeler v. Ritter, 62 N. Y. 872 ; Briggs slough r. Cheatham, 84 Mo. 18 ; Daleo. V. Bowen, 60 N. Y. 464. But it is clear Turner, 84 Mich. 406 ; Warder v. Bald- that the facts are available as an estop- win, 61 Wis. 460. pel where there was no opportunity to • Wood v, Ostram, 29 Ind. 177 ; plead them. Foye v. Patch, 182 Mass. Ransom v. Stanberry, 22 Iowa, 884 ; 105 ; Clink v. Thurston, 47 Cal. 21 ; Delphi v, Startzman, 104 Ind. 848 ; Cans V. St Paul Ins. Co., 48 Wis. Bobbins «. Magee, 76 Ind. 881. 108. ^ Texas Banking Co. o. Hutchins, 68 1 Chitt/s Precedents, 407 ; Everest Texas, 61. & Strode, Estoppel, 890, 402 ; Freeman * Robbins v, Magee, 76 Ind. 881, V, Cooke, 2 Ex. 654, 662; Sanderson v, 891 ; Cole v. Lafontaine, 84 Ind. 446, Collman, 4 Man. & G. 209 ; Lyon v. 448 ; Wood v. Ostram, 29 Ind. 177 ; 'Reetl, 18 Mees. & W. 285 ; Coleman Stewart v. Beck, 90 Ind. 458 ; Anderson V. Pearce, 26 Minn. 123 ; Tumipseed v. v, Hubble, 93 Ind. 570, 678 ; Troyer v. Hudson, 50 Miss. 429, 485 ; Mayer r. Dyar, 102 Ind. 896 ; Gilbreath v. Jones, Bamsey, 46 Texas, 871 ; Guffey r. 66 Ala. 129. Hence, ii a party is to be O'Reiley, 88 Mo. 418. estopped by a writing, the original or a « Wood V, Oitram, 29 Ind. 177; copy should be annexed, or at least Anderson v. Hubble, 98 Ind. 570 ; enough to show clearly the facto upon Clauser ». Jones, 100 Ind. 128 ; Wood which the estoppel is to be founded. V. Nicholls, 88 La. An. 744 ; Bansom Ashley v. Foreman, 85 Ind. 66, 61. V. Stanberrv, 22 Iowa, 834; Phillippe • Hayes «. Virginia Protection AsBoa, V, Van Schack, 87 Iowa, 229 ; Noble v. 76 Va. 226. 700 PROCEDURE. [chap. XXH. eral that a plea of estoppel of any kind, when made, should claim that the opposite party should not be admitted to make use of what the supposed estoppel would exclude.^ We proceed now to the consideration of the form and manner of pleading by way of estoppel, and to the matter of estoppels arising on the pleadings or in the course of the conduct of causes by reason of the action of the parties pending the liti- gation itself. The subject will be considered in the order of the three divisions of estoppel, as already presented. And firat, of questions of pleading and evidence in estoppels by record. 1 Whittomore v, Stephens, 48 Mich. 578, 678. CHAP. XXm.] BBTOPPEL BY RECORD. 701 CHAPTER XXIII. ESTOPPEL BT RECORD. The proper plea of the general issue to an action upon a judg- ment of a court of record is nul tiel record. The plea of nil debet would admit the existence of the record, and at the same time deny the correctness of the judgment. The same is true in respect of judgments of the sister states.^ But in the case of judgments of foreign countries, as these are not technically rec- ords the proper way would be to plead nil debet or the special matter which shows that the judgment is void.^ If the plea deny a record in the same court, the replication thereto should reassert the existence of the record and conclude with a prayer that it may be viewed and inspected by the court, and then a day is given to the parties.^ And when the record of another court is denied, the replication reasserts it, and a day is given to the plaintiff to bring it in. When the defeTidant has pleaded a record of the same court, the replication denying it concludes (or concluded under the old practice) with a verifica- tion, a day being given to the parties to hear judgment ; and where the defendant has pleaded a record of another court, the replication of nul tiel record may either conclude by giving the defendant a day to bring it in, or with an averment and prayer of the debt and damages.* In the former case the issue is com- plete upon the replication ; but in the latter there should be a rejoinder, reasserting the existence of the record ; and hence the first form being the more concise is preferable.^ The burden of proof rests as a matter of course upon the party who sets up the judgment to show that it is a bar to the ac- 1 Ante, pp. 268-270. Becker, 8 Serg. & R. 298 ; 8 Black. 2 1 Chitty, Pleading, 485. Com. 880, 881. ' 1 Chitty, Pleading, 600 ; Share v. ' Ihid. See the precedents, post, pp. Becker, 8 Serg. & R. 298. 726 et seq. « 1 Chitty, Pleading, 600 ; Share v. 702 PROCEDUBK. [chap. XZHI. tion ; ^ but it has become the settled practice in declaring upon a judgment to allege generally that the plaintiff by the consid- eration and judgment of the court recovered the sum mentioned therein, and not as formerly to set out the whole of the proceed- ings.^ The judge may look into the pleadings themselves of the former trial, though not now set out in full, to see whether a plea of res judicata can be sustained,^ or he may hear evidence on the point when the pleadings are not decisive * But in pleading or replying a judgment as an estoppel to an action or allegation more minuteness must be observed.^ It must now be made to appear that precisely the same matter was in issue at the former trial as that now in question, and that the judgment was rendered on the merits,* or there can be no estoppel.^ If the record pleaded does not show that the fact in question was in issue or necessarily involved in the verdict or decision, the fact should be shown in the pleading. Thus, if a plea of judgment in favor of the defendant in detinue, on issue of not guilty, does not allege that the verdict was because of want of possession, it will be fatally defective in a subsequent action of trover between the parties.^ Such exactness in the case of a plea may, however, be escaped by pleading, when permissible, the general issue. This is seen in Phillips 2;. Berick.® The plaintiff sued for work and labor done, and after a plea of non assumpsit offered to prove that the defendant was indebted to him for services rendered prior to March 8, 1817. But the defendant objected, and produced the record of a judgment rendered at the September term, 1817, upon a debt to the same plaintiff alleged to have arisen on the 8th of March, 1817. He, however, went too far, contending that this record precluded the plaintiff from giving evidence of any 1 Remington Paper Co. v. O'Dough- ments. Jonrolmon v, Maaaengill, 86 erty, 81 N. Y. 474 ; Zoeller v, Riley, Tain. 81. 100 N. Y. 102; Pruitt v. Holly, 73 • Fowlkes v. State, 14 Lea, 14. Ala. 869. » Temple v, Williams, 91 N. Car. 82, 2 Biddle v, Wilkins, 1 Peters, 686 ; 91 ; Gilbreath v. Jones, 66 Ala. 129. Houstoun V. Sligo, 29 Ch. D. 448. ^ Gilbreath v. Jones, 66 Ala. 129. > Houstoun V. SUgo, 29 Ch. D. 448. See Chamberlain v. Gaillard, 26 AUl ♦ Ante, p. 87. 604. * In equity a judgment should be '16 Johns. 136. pleaded by full and proper ayer> / CHAP. XXJIT.] ESTOPPEL BT RECORD. 703 demand for service arising before that time. This would have been to better his case by not pleading specially. Mr. Justice Spencer said that the question was whether a recovery by the plaintiff for services rendered prior to March 8, 1817, was a bar to any other claim for services performed before that time, thougli it should be made to appear, not only that it was not the same work for which a recovery had already been had, but that it was an entirely different piece of 8er\'ice. He said that it had been decided that a recovery in a former action, appar- ently for the same cause, was only prima facie evidence that the matter of the subsequent demand had })een tried ; it was not conclusive.^ The plaintiff would be required, however, to show clearly and satisfactorily that the services for which he sought to recover were not the same as those embraced in the former suit, and that they grew out of n distinct contract ; for if a man labored for another a year under the same contract, he could not split up the demand and sue for each day's work.^ This doctrine that parol evidence is admissible, in the silence of the record, to prove or disprove the identity of the matter in litigation with that of the former adjudication is, as we have elsewhere seen, well settled.^ Though the particular matter may not have been the primary subject of litigation, yet if the necessary issues in the former case drew it in, the adjudication upon it will, by the better rule, be conclusive.* ^ Snider v. Croj, 2 Johns. 227 ; Sed- would be prima facie evidence for th« don V. Tntop, 6 T. R. 607. defendant ; and this the plaintiff wonld ' ' If we test the role we have laid have to meet and overthrow by showing down,' he proceeded to say, * by the for what the former recovery was, and rules of pleading, the same result wiU that the claim set up anew had not been be found. The defendant, had he submitted to the jury and was a distinct pleaded specially, must have stated a transaction, not so identified with the former recovery. . . . The replication former suit as to render it an entire con- would be that the promises in this ac- tract, incapable of subdivision.' tion were not the same identical prom- ' Supples v. Cannon, 44 Conn. 424 ; ises for the non-performance whereof the Fowlkes «. State, 14 Lea, 14; Cham- plaintiff had not recovered by the said berkin v. Gaillard, 26 Ala. 504 ; Oil- judgment This would have formed an breath v. Jones, 66 Ala. 129, 18S ; Per- issue to the country ; and the inquiry kins r. Walker, 19 Vt. 144 ; Gardner w. in pais wonld be whether the former re- Buckbee, 8 Cowen, 121 ; Burt v. Stem- covery included the demand now in burgh, 4 Cowpu, 669. See United contest ; and the burden of proof would States v. Lane, 8 Wall. 185; ante, p. 87. be thrown on the plaintiff. The lecotd « Gilbreatli v. Jones, 66 Ala. tQ9, 704 PBOCEDUBE. [chap. zxm. In regard to the matter of form the following plea was held good in a recent ease : ^ The declaration was for an injury to the plaintiffs reversion ; and the defendant inter alia pleaded that the plaintiff ought not to be permitted to implead the defendant in respect of the causes of action in the first count allied, because he said that after the accruing of the causes of action in the first count alleged and after the passing of the Chancery Segulation Act the plaintiff commenced his suit and filed his bill in the High Court of Chancery against the defendant^ and impleaded the defendant therein for the very same rights, claims, and causes of action as in the said first count alleged ; and such proceedings were thereupon had in the said suit that before the commencement of this suit the said Court of Chancery deter- mined the same alleged causes of action in favor of the defend- ant, and gave judgment, and decreed in respect thereof in favor of the defendant ; and the said judgment and decree still remained in force. The objection to the plea was that it was not specific enough in the statement of the issue in the trial in chancery. Counsel contended that it was necessary to show that the matter did in fact come in issue, and that it was not enough to show that it might have come in issue, as they said was the case with the plea in question. But the plea was sustained.^ 188. See McCalley v, Robinson, 70 the amount of dainag«*B. Therefore the AIa. 432 ; Johnston v. Riddle, ib. 219. Court of Chancery may hare given the ^ Langmead v. Maple, 18 C. B. m. 8. go-by to the right now asserted by 266. the plaintiff. But as the plea alleges ' Willes, J. said that at first he had that the Court of Chancery determined been disposed to think the plea bad. the same alleged causes of action, I It was not sufficient to constitute res think we are bound to assume it to judicata that the matter has been deter- mean that the court decided upon the mined ; it must appear that the matter legal merits against any right of ac- hed been controverted as well as deter- tion in the plaintiff in respect of those mined upon. 'Looking at the pleas,' causes; and as the court had jurisdie- he proceeded to say, * it seemed to me tion, it might have made a final end of that probably the Court of Chancery the matter. I can quite conceive that may not have dismissed the plaintiffs the first view may be the proper one bill on the merits, but' judging upon to take on the evidence given. It may equitable grounds may have considered appear that the decree was upon the it not to be a case for an injunction, and face of it final, and either on the face may have declined to go into the ques- of the decree or on the evidence if tion whether the plaintiff had any legal admissible, that the dismissal of t1i« right or not It may have been un- plaintiff's biU proceeded upon grounds necessary to go into that except for peculiar to the Court of Chancery, and CHAP. XXIII. j ESTOPPEL BY RECORD. 705 In respect of judgments of foreign countries a plea of judg- ment recovered in a foreign nation must show that the court had jurisdiction, and that the judgment was final and conclusive where given.^ And in the case of an action upon a foreign judg- ment the declaration should set out the same facts.^ With resmrd to judgments of the sister American states presumptions arise in favor of the record under the same circumstances^ as in the state in which the judgment was rendered; and it would seem to follow that the same rules of pleading should prevail in both cases. It has been held in a late case ^ in an action upon a judg- ment rendered in another state, which would have been invalid by the law of the state in which it was sought to be enforced, that it must be shown that the judgment was valid where ren- dered. But whether it was necessary that this fact should be alleged in the declaration was not stated. In the case of judg- ments of inferior courts, as there are no presumptions in their favor, the jurisdiction must be proved ; and this is true as well of domestic as of foreign judgments.^ In those cases in which a plaintiff has by judgment established his right of action for a recurring liability ^ he should declare as upon a new cause, leaving the judgment to be used in evidence to establish his general right. Thus, in regard to a second suit for a continuing nuisance Mr. Justice Rogers^ says that the plaintiff should file his declaration for the corUinuancey and not for the same cause of action involved in the first suit ; and then the verdict and judgment in the former action, given in evidence that this matter was not disposed of. extent. Thus, it has lately been de- But on looking at the plea, for the cided by the Supreme Court of the reasons mentioned I think I must as- United States that the allegations of same that the Court of Chancery did the record as to the facts concerning dispose of the legal merits, and that jurisdiction are 'only prima facie evi- the plaintiff has no right to ask this dence. Thompson ». Whitman, 18 Wall, court to come to a different decision 467 ; Knowles v. Gaslight Co., 19 Wall. on the same matter.* 58. 1 Frayes v. Worms, 10 C. B. N. s. * Crafts v. Clark, 81 Iowa, 77. 149 ; Plummer v, Woodbume, 4 Bam. • • Cole v. Stone, Hill & D. 8«0 ; & C. 625 ; Douglas v. Forrest, 4 Bing. Thomas o. Robinson, 8 Wend. 267. See 686. Comp. ante, pp. 258, 288-290. ante, p. 205. 58 Ibid. ; Nouvion v. Freeman, 87 • Ante, pp. 172, 173. Ch. D. 244, C. A., Cotton, L. J. Mn Smith p. Elliott, 9 Barr, 846. ' But not in all cases to the same 45 706 PROCED0B1. [chap. XXIII. (the subject of the nuisance and the parties being the same), are conclusive of the damages to the commencement of the writ, and of the right All that is then required of the plaintiffs is to prove that the nuisance remains in the same or in a more or less damaging condition than before. However, in Massachu- setts and in Ohio judgment in cases of nuisance like this is treated as but prima facie evidence of the plaintifiTs right.^ If an estoppel by record appear plainly in a pleading the nature of which is opposed to the estoppel, the opposite party may demur ; he is not bound to answer.^ And it matters not whether the judgment relied upon was rendered before or after the action was begun in which it is invoked.' The estoppel by record is legal, and hence, to give a court of equity jurisdiction to entertain it» it would be necessary to show some equity apart from the estoppeL 1 Standish v. Parker, 2 Pick. 20 ; * Greenup v. Crooks, 50 Ind. 410. 8. C. 8 Pick. 288 ; Richardson t>. Boston, ' Jessup 9. Carnegie, 80 N. Y. 441 ; 19 How. 263 ; Courtiand v, Willis, 19 AUis v. Davidson, 28 Minn. 442; Poor^ Ohio, 142. man p. Mitchell, 48 Mo. 45. CHAP. XXIY.] ESTOPPEL BT DEED. 707 CHAPTER XXIV. ESTOPPEL BY DEED. Questions peculiar to pleading and practice in relation to estoppels by deed have not arisen so often as in the other divi- sions of the subject, and we are unable to present the subject very fully without repeating what has been said befora The foUowing are the most important matters. When the matter which operates as an estoppel appears on the face of a pleading, the opposite party may demur to a plea by which the defendant attempts to set up such matter as a defence.^ Thus, if in covenant on a lease by the lessor the de- fendant plead nil habuit in tenementis, that is in effect that the lessor had no title to or interest in the land, the plea will be bad because the matter of estoppel, to wit, the demise by deed and the holding thereby, appear in the declaration. But where the action upon a lease is brought by a party who claims deriv- atively from the lessor, in which case the declaration should show the lessor's title and the derivative title of the plaintiff, it is competent to the defendant, as we have elsewhere seen,^ to deny that the lessor had the particular title alleged in the declaration.^ The demurrer should, it seems, be special.^ If the matter of estoppel do not appear from the previous pleading, the replication should expressly show and rely on such matter; and it is advisable to have an appropriate commence- ment and conclusion to the replication ; for by replying an estoppel without relying upon it the advantage of the estoppel, 1 Oregonian By. Co. v. Oregon Ry. all^ that the plaintiff is not a corpora- Co., 10 Sawy. 464. tion or has no power to make the oon- * Ante, pp. 6S6 et seq. tract sned upon, contrary to his acknowl- * 1 Chitty, Pleading, 608. edgroent and deed, as appears hy the * Oregonian Ry. Co. «. Oregon Ry. declaration and is admitted by the plea. Co., 10 Sawy. 464. E. g. that the de- Ibid. fendant ought not to be beard to say or 708 PROCEOUBB. [chap. where the rules of pleading are strictly enforced, might some- times be lost^ As (under the old law^ where in debt for rent on a demise by indenture by one who has notliing in the laud (the declaration not showing the deed) the defendant pleads nil habuit in tenementis, if the plaintiff reply that he had a sufficient estate to make the demise^ he would lose^ according to techniccd rules^ the benefit of the estoppel ; but if he should reply that the lease was made by indeTitv^e, and conclude unde petit judicium if the defendant shall be admitted to plead the plea against his own acceptance of the lease by indenture, the defendant would be estopped.^ The estoppel by deed is a legal estoppel, and therefore always available at law. To give a court of equity jurisdiction to en- tertain it, it would then be necessary to show some ground of jurisdiction apart from the estoppel. ^ 1 Ghitty, Pleading, 608. * 1 Chitty, ut sapra. See Davis «. S See ante, p. 507. Shoemaker, 1 Rawle, 185. CHAP. ZXY.] BSTOPPSL IN PAIS. 709 CHAPTER XXV- ESTOPPEL IN PAIS. A PLEA of estoppel by contract, in respect of a fact actually or virtually (if clearly) agreed need go no further, it seems, than to allege a valid agreement as regards the fact, with such other matters as may make that agreement intelligible. If the fact in question, though recited in a contract, is not in law agreed, then a further allegation is necessary, showing that the pleader acted upon it in good faith, believing it to be true, and without notice of anything to the contrary.^ Again, if the estoppel depends upon the doing of some act in the way of performing the con- tract, as the giving of possession to the party to be estopped, that fact must be alleged. A plea of estoppel in pais by misrepresentation * should ordi- narily show : 1. That the party sought to be estopped has made a representation with the intention of influencing the conduct of the pleader in a manner inconsistent with the claim set up. 2. That the misrepresentation was known by the party making it to be false, and that the pleader did not know that it was false, but, on the contrary, believed it to be true. 3. That the pleader has acted upon such act or declaration. 4. That he will be prejudiced by allowing the truth of the admission to be disproved.' 1 Quaere whether this could be an- of the elements of this estoppel, see swered by an aUegation of mistake ? See ante, p. 570. Representation of the ante, p. 460. existence of a consideration to a con- ^ In regard to estoppel in pais aris- tract stated and relied upon in a plead- ing from waiver, see chapter 20. On ing works no estoppel. Chatfield v. pleading an estoppel in pais, see ante, Simonson, 92 N. Y. 209 ; Russell r. p. 701. Eierney, 1 Sandf. Gh. 84 ; Day v. Per- * Brown v. Brown, SO N. Y. 519, kins, 2 Sandf. Ch. 859. But as to 541 ; Plumb v. Cattaraugus Mutual Ins. sworn pleadings and depositions, see Co., 18 N. Y. 892 ; Dezell v, Odell, ante, p. 571, note 2. 8 HiU, 215. For a more full statement 710 PBOCEDURE. [chap. ZXY. In regard to the evidence required to establish the plea, it is not necessary that that should show or tend to show an inten- tion to mislead ; enough that it shows or tends to show that the party who made the misrepresentation intended that the same should be acted upon.^ Indeed, it is not necessary to offer evi- dence of an actual intention that the representation should be acted upon ; it is enough to show that the conduct of the party supposed to be estopped or the circumstances of the situation were such as to lead a reasonable man to suppose an intention of that kind* So too it is not required that the pleader should prove that the party who made the representation knew it to be false ; it is enough to show that the facts were such as the law requires him to know, or that he made a statement recklessly, not knowing whether it was true or false.* On the other hand, it is not in all cases sufficient (all else having been established) for the pleader to show that he was ignorant of the facts and believed the representation to be true, for he too may be required to know the true state of things.^ In some cases the pleader may show presumptive damage.* Evidence is admissible of facts constituting an estoppel in pais, even against the production of a sealed instrument In Flatt V. Squire,* a bill in equity, it appeared that Piatt, a mort- gagee of certain land in question, represented to a third person, under whom the defendant claimed, that the debt for which the mortgage was given had been paid and satisfied, and that the third person was induced by reason of the statement to relin- quish an attachment of the mortgagor's goods, and to take a mortgage of the same land to secure the debt. It was held that a mortgage under which the defendant claimed should take pri- ority over that given to Piatt ;• and this too though Piatt's mortgage was on record at the time of his misrepresentations. The court said that it was no objection that the title of Piatt was by a recorded deed. It was true that title by mortgage deed could not be released by parol. But although the l^al * Ante, p. 629. The person who • Ante, p. 627. sets up the estoppel has of course the * Ante, pp. 645-649. burden of proof in regard to it Petring ^ 12 Met. 494. V. Chrisler, 90 Mo. 649. • Fay «. Valentine, 12 Pick. 40 ; > Ante, p. 610. Dewey v. Field, 4 Met 881. CHAP. XXV.] ESTOPPEL IN PAIS. 711 title might exist as a paper title, the party may not he ahle to enforce it or to render it'effectuaL This kind of defence, when offered to control written conveyances or title deeds, was no more obnoxious to the objection of permitting oral evidence to control written evidence than was the ordinary case of setting aside conveyances for fraud upon oral proof. Where an estoppel in pais turns upon silence, as where it is alleged against the assertion of title to property on the ground that the owner stood by and suffered it to be sold as the prop- erty of another, it is necessary to allege clearly the assent of such party to wliat took place. A statement of information and belief is not enough. In Jones v. Cowles ^ a bill was filed in chancery to restrain Cowles from asserting the legal title to cer- tain lands alleged to have been sold to one Ware, under whom the plaintiff claimed, on the ground that he had placed himself in a position which estopped him from asserting such title against the plaintiff. The chaise was that the plaintiff's gran- tor, Arnold Scales, purchased the lands in question of Ware for the sum of $4,000, for which notes were given and a bond for title received. The bill then proceeded as follows : 'Your orator further saith that he is advised and believes that before the said contract of purchase was consummated, the said Thomas M. Cowles, in whom was the legal title, as your orator is informed, said to the said Arnold Scales and Eobert J. Ware that the said Ware might sell the said lands to the said Scales, and that he (the said Cowles) would look to the said Ware for the payment of the same ; and that the said Cowles in fact stood by and gave his assent, as he believes, to the sale of said lands by the said Ware to the said Scales, he having been advised at the time that a contract had been agreed upon which was to become effectual if he (Cowles) should approve or sanction the sale, which he did do/ The bill then stated that Scales had been induced by the statement made by Cowles to purchase the land; that Scales sold to the plaintiff, and that the plaintiff made the purchase and made valuable improvements on the faith of the assent of Cowles to the sale by Ware. The bill was dismissed.^ 1 26 Ala. 612. ering judgment, now said : ' It will be ' Mt. Justice Goldthwaite, in deliv- seen from the statement we have made 712 PBOCEDUBE. [chap. XXV The facts constitutiDg an estoppel in pais may, indeed, be ground for filing a bill for a conveyance of real estate or for a further assurance.^ In Favill v. Roberts the plaintiff brought an action for the purpose of compelling the conveyance of a farm which he had purchased of the executor of John Boberts, of whom the defendants were heirs. The land had been sold and paid for under an order of court, and improvements had been made by the plaintiff, when it was discovered that the court had no authority to grant the order for the conveyance of the land. The plaintiff now sought to enforce a remedy against the heirs at law, and to compel a conveyance, on the ground that the executor acted with the consent and approbation of the heirs, and that they encouraged the sale. It was held that the plaintiff was entitled to his remedy.^ Generally speaking, estoppels in pais are available as weU at law as in equity. This is true even of the so-called ' equitable estoppel ; ' indeed, it has been laid down that that estoppel is not available as such in equity, but that there must be some equity apart from the estoppel to give a court of equity the right to entertain it.' The Statute of Frauds, however, raises a difficulty touching estoppels in pais in regard to land. It is everywhere conceded, indeed, that the title to land can be af- fected by estoppel in pais arising from fraud. Thus, it is even held that a vendor of land will not be allowed, after represent- ing that there is an alley between two lots of his at the time of selling one of them, to deny the representation after the sale has been made and the representation acted upon ; though the deed of the bill that the equity of the appel- 73. If the allegation we have referred lant rests entirely upon the conduct of to is struck out there is no other which Oowles in giving his assent to the sale would create any estoppel on the part of by Ware to Scales ; and hence it is Cowles.' necessary that the fact should be clearly ^ Favill o. Roberts, 3 Lans. 14 ; s. c. charged in the bill. But the bill is de- 50 N. Y. 222 ; Goodman v. Winter, 64 fective in this, as the fact of the assent Ala. 410 ; Stone v, Tyree, 30 W. Ya. is not charged at all. The allegation, 687, 702. Comp. estoppel by deed, as will be seen from the extract we ante, pp. 486, 440. have made, simply is that the com- * See Stone v. Tyree, 30 W. Ya. 687, plainant was advised and believed that 702 ; Green Bay Canal Co. v. Hewitt, such assent had been given, and this is 62 Wis. 316, 827. not enough. See Read v. Walker, 18 * Drexel v, Bemey, 122 U. S. 241. Ala. 828 ; McDowell v. Graham, 3 Dana, See Moore v. Fzaxer, 16 Or^. 686. CHAP. XXV.] ESTOPPEL IN PAIS. 718 of conveyance contained no allusion to the alley .^ Parol dedi- cation is a more familiar illustration. It has been held, how- ever, that the doctrine of estoppel by conduct, where the subject of the representation is the title to reed estate or property which can only be passed by deed, though agreed to be available in equity on the ground of fraud, is not available in a suit at law.* The case first cited was an action of ejectment The plaintiff being seised in fee of the land in controversy, sold it to one Bird, and gave bond to make title on payment of the purchase- money secured by the purchaser's notes. One of these notes the plaintiff indorsed to the defendant; he obtained judgment upon it against the purchaser, who was in possession of the land, and under the instructions of the plaintiff had the execution levied on the land, and at the plaintiff's request purchased it. Afterwards the plaintiff paid the residue of the notes which he had indorsed, and filed a bill in chancery against the purchaser Bird, and had the land sold in payment of the purchase-money. The defendant was not a party to these proceedings. The plaintiff became the purchaser at the sale under the decree, and now brought the present action to recover the land. Upon this evidence the court below instructed the jury that the plaintiff was estopped to assert his title against the defendant ; but this judgment was reversed by the Supreme Court* The learned • 1 Eirkpatrick v. Brown, 69 Ga. 450. 111. 455 ; Swick v. Sears, 1 Hill, 17 ; s Doe d. McPherson v. Walters, 16 Delaplaine v, Hitchcock, 6 Hill, 14 ; Ala. 714 ; Hendricks v. Kelly, 64 Ala. Townsend Bank v. Todd, 47 Conn. 190, 888 ; Thompson v, CampbeU, 57 Ala. 216. See Heard i;. Hall, 16 Pick. 460 ; 188; Taylor v. Agricnltaral Assoc., 68 Wade o. Bunn, 84 111. 117 (equity) ; Ala. 229 ; Hayes v, Livingston, 34 Mich. Curyea v. Berry, ih. 600 ; Foster v. 884 ; White v. Hapeman, 43 Mich. 267 ; Bigelow, 24 Iowa, 379 ; Suttle v. Kich- Showers v. Bobinson, ib. 502, 518 ; mond R Co., 76 Va. 284 ; Nix o. Col- First National Bank o. McAllister, 46 lins, 65 Ga. 219. Mich. 897 ; De Mill v, Moffatt, 49 Mich. * Dargan, C. J. (for the court) : 125 ; Nims v. Sherman, ib. 45 ; Smith ' The plaintiff was seised in fee of the V. Mundy, 18 Ala. 182 ; Wimmer v. premises, and he has executed no deed Ficklin, 14 Bush, 198 ; Hamlin v. by which he has transferred tlie title Hamlin, 19 Maine, 141 ; Knight v. to another. This is admitted ; but it Wall, 2 Dev. & B. 125 ; West v. Tilgh- is contended that the conduct of the man, 9 Ired. 163 ; Stockyards v. Wig- plaintiff in directing the levy to be gins Ferry Co., 102 III. 514; Blake v. made on the land as the property of Fash, 44 HI. 802 ; Mills v, Qraves, 88 Bird the purchaser, who held his bond 714 PBOCEDUBK. [chap. XZV. Chief Justice who delivered the jadgment, referring to the oases of parol dedication, said that they were not in point by reason for title, and requesting the defendant supposed state of facts to show that to buy, estops him from asserting his these facts are untrue to the prejudice legal title, more especially as the amount of him who has acted pn his repreaen- bid at the sheriff's sale by the defendant tations. Pickard v. Sears, 6 Ad. & E. extinguished, to that extent, the liabil- 469 ; Heane v, Rogers, 9 Barn. & C. ity of the plaintiff as the indorser of the 577 ; Graves v. Key, 8 Bam. & Aid. note of Bird to him. If any one hav- 818. In the case of Hamlin v. Hamlin, ing the title to land induce another to 19 Maine, 141, it is said that " no verbal purchase it from ons who has no title, agreement respecting Und can create it is very certain that the legal ovrner an estoppel at law, for the title to land cannot be permitted afterwards to assert can pass only by deed, and no man can his title and defeat the purchaser. Sug- be barred of his right to land by way den, Vendors, 262. But the question of estoppel unless by record or deed." is. In what forum shall the purchaser In North Carolina the title to slaves can defend himself I Can he defend at law, only pass by instrument in writing ; or must he resort to equity for protect and in the case of Knight v. Wall, 8 lion ? If the defendant had been the Dev. k B. 125, it was decided that title purchaser from the plaintiff, had he paid to slaves could not be made out at law the full price of the land under the by a parol estoppel ; and if fraud had promise that the plaintiff would forth- been practised on the party, he must with make him titles, if this promise seek redress in equity, but that such had been made with a fraudulent intent fraud could not at law convey to him on the part of the plaintiff to obtain the legal title. The cases of Boiling v, the purchase-money and then assert his Petersbuig, 8 Band. 568, Heard v. Hall, legal title, yet the defendant could not 16 Pick. 460, Marshall i;. Pierce, 12 defend himself at law against the legal K. H. 127, and Hamlin v. Hamlin, 19 title, and would be compelled to resort Maine, 141, seem also to recognise the to a court of equity for protection. If doctrine that the owner at law is not es- a court of law could not protect the de- topped from asserting his legal title to fendant in the case supposetl, I do not the land by a fraud committed by him see how it could if the plaintiff having on the defendant, and who in conse- the legal title fraudulently inducetl the quenoe of the fraudulent acts of the defendant to purchase at sheriff*s sale plaintiff has been induced to buy from nnder an execution against one who one who had no title. I admit that had no title that could be sold. The cases may be found in the reports of title to land can pass only by deed ; some of the states of the Union that and an estoppel at law, which works a seem to countenance a contrary doctrine, divestiture of title, can be created in But when we reflect that a court of law my opinion only by as high evidence, can look only to the legal title, and that I have looked with some care into the the legal title to land cannot pass by pa- English oases, but I have not found rol in this state, it is difficult to peroeivB one in which a plaintiff at law was how a plaintiff at law shall be estopped held to be bound by a parol estoppel from asserting his title merely because when the subject-matter was such that of his fraudulent acts or conduct, whtdi the title could pass only by deed. If the render it inequitable or unjust for him title could pass by delivery or by parol, to assert. If a court of law because of then a party shall be bound by a parol such conduct or acts should stop short istoppel, and cannot be permitted after and refuse to give effect to the Icigal he has induced a party to act upon a title, would it not be on account of the ^ CHAP. ZXY.] ESTOPPEL IN PAIS. 715 of the character of the grantee (the public) who was intended to be benefited by the act It is worthy of doubt, however, even though the doctrine of the Alabama court be correct, whether this can be considered a sound distinction. It would seem better to say that the case of dedication is an admitted excep- tion to the rule that land cannot be conveyed by parol. But it is considered that parol dedications depend upon the doctrine of estoppel in pais.^ There is, perhaps, little doubt of the correctness of the Ala- bama doctrine (except in those states in which equity is admin- istered in courts of law) where the party claiming to hold the land by the equitable estoppel brings the common-law ejectment against the party who has been guilty of the fraud. The latter still holds the legal title to the land, and must prevail at law when it is exhibited against the equitable titla It is doubtful if an equitable estoppel can be ground of a common-law eject- ment ; though an estoppel by deed can be, for in the latter case the plaintiff has the legal title as between the parties. But it is difficult to see how an equitable estoppel could be more effectual than a purchase of and payment for the land, which without a deed would be no defence to an lejectment at law. There is, however, the strongest authority in favor of the position that an equitable estoppel concerning land is available at law,^ at least when it is not made the ground of a common- equities of the defendant? Yet we ' Kirk v. Hamilton, 102 H. S. 68 know that a court of law will not look Dickerson v. Colgrove, 100 U. S. 578 to or consider the equity of a party in Brown v, Wheeler, 17 C5onn. S45 opposition to the legal title of the other. Hatch v. Kimball, 16 Maine, 146; Dur- The better course, in my opinion, is to ham v. Alden, 20 Maine, 228 ; Range- pursue the well-settled rule of law, and ley v. Spring, 21 Maine, 187 ; Copeland to permit the legal title to prevail at v. Copeland, 28 Maine, 525 ; Stevens v. law regardless of the equity the op- McNamara, 86 Maine, 176 ; Bigelow posite party may have, and leave him v. Foss, 59 Maine, 162 ; McCune v, to enforce his equitable rigltts in a McMichael, 29 6a. 812 ; Pool v. Lewis, Court of Chancery, which has power 41 6a. 162 ; Burkbalter v. Edwards, 16 not only to arrest or enjoin the suit at 6a. 593 ; Davis v. Davis, 26 CaL 23 ; Uw, but also to decree a conveyance McAfferty v. Conover, 7 Ohio St. 99; of the legal title to him who in equity Spears v. Walker, 1 Head, 166 ; Bar- is entitled to it.' See also Warner v. ham v. Tuberville, 1 Swan, 487: Dodge Middlesex Assur. Co., 21 Conn. 444. «. Stacy, 39 Vt. 558 ; Halloran v, Whit- » Baker v. Johnston, 21 Mich. 319, comb, 43 Vt. 806; Spiller v. Scribner, 845 ; Lee V. Lake, 14 Mich. 12. 86 Vt. 245 ; Smith v, HaU, 28 Vt 864 ; 716 PBOCEDUBB. [chap. XXV. law ejectment. On a question of partition by parol agreement the Supreme Court of Connecticut, in Brown v. Wheeler, has 'said in reference to the position that a parol estoppel cannot prevail in the case of real estate : ' This certainly is not the common law. Littleton says : " And so a man can see one thing in this case, that a man shall be estopped by matter in fact though there be no writing by deed, indenture, or other- wise ; " and Lord Coke, commenting thereon, gives as an instance of estoppel by matter in fact this very case of partition.^ And such an award [one by parol] has in England been held suffi- cient to estop a party against whom ejectment was brought from setting up his title.' ^ Concerning the first two of these authorities, however, it might be replied that they were before the Statute of Frauds ; without which the reason for denying the right of the party resting on the estoppel would not be so strong. And in regard to the case of partition that is record evidence of the rights of the parties. However, apart perhaps from cases of ejectment at common law, the weight of authority is now clearly this way. Indeed, the ground upon which equity treats the case as out of the Statute of Frauds, to wit, the fraud of the person to be estopped, should be sufficient to justify a court of law in acting. The ground of an estoppel by conduct commonly is fraud ; and it cannot be that a statute made to prevent the accomplishment of fraud should stand in the way of preventing such a result in any court. And it should be observed that it is not because of any difficulty involved in the redress itself that it has been supposed that equity alone has jurisdiction. Proceedings at law which in equity might be barred by reason of estoppel may be enjoined if the estoppel from complication cannot be availed of at law.^ Shaw V. Beebe, 85 Yt. 205 ; Gove v. ^ Coke, Litt. S56. White, 23 Wis. 282 ; Mariner i;. Mil- * Doe d. Morris v. Bosser, 8 E&st, 15. waukee & St. Paul R. Co., 26 Wis. 84 ; * Society for MaDuf. v. Lehigh Yal- Brown v. Bowen, 80 N. Y. 519 ; Finne- ley R. Co., 82 N. J. Eq. 829 ; Williams gan V. Carraher, 47 N. Y. 498 ; Beau- v. Jersey, Cnig k P. 91, 97. See Tay- pland V. McKean, 28 Penn. St. 124 ; lor v. Brown, 81 N. J. Eq. 168. Stevens v. Dennett, 51 N. H. 824 ; Hale. 9. Skinner, 117 Mass. 474. CHAP. XZn.] INCONSISTENT POSITIONS IN COURT. 717 CHAPTER XXVL INCONSISTENT POSITIONS IN COUBT.^ If parties in court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralyzed; the coercive process of the law, available only between those who consented to its exercise, could be set at naught by alL But the rights of all men, honest and dishonest, are in the keeping of the courts, and consistency of proceeding is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party ,^ has taken a particular position deliberately in the course of a litiga- tion must act consistently with it;^ one cannot play fast and loose.^ Thus, if counsel seeks to amend his pleadings and his request is granted upon a condition, and the amendment made accordingly, he cannot thereafter object to the condition ; sup- posing at all events that it was competent to him to accept it.^ So after agreeing that a person shall be treated as a party from a time specified the agreeing party cannot afterwards say that such person was not a party from the time stated.® Upon the same principle one cannot waive a tort and sue for it in the ^ The remark made ante, p. 678, 4S ; Tharlongh v. Kendall, 62 Maine, note 1, is equally applicable to the 166; Brown v. Bowen, 90 Mo. 184; sabject of this chapter. Callaway v. Johnson, 51 Mo. 88 ; Mc- * Lyon V. TraTelers' Ins. Co., 56 Queen v. Gamble, 88 Mich. 844 ; Savage Mich. 1^1. P. Russell, 84 Ala. 108; £lliott v. » Railway Co. v, McCarthy, 96 U. S. Dyclce, 79 Ala. 160 ; Nitche v. Earle, 268 ; Daniel v. Morton, 16 Q. B. 198 ; 117 Ind. 270 ; Bradley v. Rogers, 88 Dreyfonsff. Adams, 48Cal. 181 ; Garber Eans. 120. V, Doersom, 117 Penn. St. 162, 168 ; * Garber v. Doersom, snpnu Bonham v. Bishop, 28 S. Car. 96 ; Dun- ^ Smith v. Rathbnn, 75 N. T. 122. ning V. West, 66 lU. 866 ; Cronk v, « Lawrence i;. Ballon, 60 Cal. 258. Tnunble, ib. 428 ; Long v. Fox, 100. DL 718 PBOCEDtmx. [chap. xzti. same action.^ So also after judgment for the plaintiff in eject- ment the plaintiff cannot maintain an action ex contractu for mesne profits, even though the defendant is a co-tenant with him, for the defendant has been treated as and found to be a trespasser.' And one who insists in ejectment upon recovery of a building upon the land as part thereof will not be allowed to deny that it is a fixture and a permanent improvement, so as to escape payment to the defendant of the value thereof, to which the defendant is entitled.^ Asking for a continuance of a cause is held to be an aflSrmance conclusive of the court's jurisdiction.^ And participating in a new trial precludes one from complaining of errors in the first ;^ especially will one be precluded from complaining of an error committed at one's own request® Again, if provisions of law are waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or to be taken upon the footing of the waiver.^ If a party accept the benefit of a judgment, some authorities hold that he will be estopped to appeal from it,^ to dispute the court's jurisdiction,* or otherwise to deny its validity and force.^ ^ Finlay v, BrysoD, 84 Mo. 664, * Iron Moantain Bank v. Armstroog, 671 ; Brewer v. Sparrow, 7 Hurl. & C. 92 Mo. 265, 277. SIO ; Rodermnnd p. Clark, 46 N. Y. * Price v, Breckenridge, 92 Mo. S78 ; S54 ; Brown v. Moran, 42 Maine, 44 ; Fairbanks v. Long, 91 Mo. 628, 683. Whitney v. Allaire, 4 Denio, 554. See Mohr v. Marks, 89 La. An. 575. * Munroe v. Lake, 1 Met 459. < Al- '' Bates v. Ball, 72 111. 108. legans contraria non est andiendos ; ' * Carll v. Oakley, 97 N. T. 683 ; that is, as Lord Kenyon is said to hare Bennett v. Van Syekel, 18 N. T. 481 ; translated it, a man shall not 'blow Badway v. Graham, 4 Abb. Pr. 448. hot and cold at the same time.' Kaeh- Bat see Embrey v. Palmer, 107 tJ. S. ler P. Dobberpnhl, 60 Wis. 256, 261. 8 ; Morriss o. Garland, 78 Va. 215 ; > Zwietasch v. Walkins, 61 Wis. holding that to accept satisfaction of a 615. See Dalton v. Whittem, 3 Q. B. decree, without agreeing not to apfwal, 961 ; ante, p. 687. is no waiver of errors so as to estop an * Saigent v. Flaid, 90 Ind. 501. So, appeal. of course, of appearance and submitting, * Ellis v. White, 61 Iowa, 644. without objection, to jurisdiction. Ring ^^ Test v. Larsh, 76 Ind. 452, 460 ; V. Penn, 48 Ohio St. 57 ; Cincinnati Kile v, Yellowhead, 80 111. 208 ; Sher- R. Co. V. Mara, 26 Ohio St. 190; man o. McKeon, 86 N. T. 266. *It U Bowen v. Bowen, 86 Ohio St. 815. So not incoonstent for one appellant to of an admission of facts, upon which demand that ho be not harassed by jurisdiction is exercised. Railway Ca o. many actions, and yet press his appeal Ramsey, 22 WalL 822, 827; Thornton [from one of them]. In beating off ods V. Baker, 16 R. L 558, 555. actioii wrongfully pioaecntod the ijgfat CHAP. ZXTI.] INCONSISTENT POSITIONS IN COURT. 719 Oa the other hand, if a party decline to accept a judgment or decree in his favor and seek another, he will not be permitted to claim the first, on the second one turning out less favorable to him.^ Nor can a plaintiff take a position in court incon* sistent Mrith the nature of his suit or claim.^ Thus, in regard to goods levied upon, one cannot claim them first as owner^ and then after sale claim a lieu upon them. The first claim ia adverse to the levy; the second seeks the benefit of it^ Nor after recovering judgment in one character or capacity can the party turn round and say that that character or capacity vrsa not the true one under which he should have acted.^ Nor can either party act inconsistently with the material allegations of his own pleadings.^ It is of course otherwise of immaterial allegations, as of the particular age of an infant in ordinary cases.® So after a pleading has by leave of court been with- drawn the pleader is at liberty to plead facts inconsistent with those before alleged.^ And after judgment against a party, he may allege any fact consistent therewith against the opposite party, though his present allegation be inconsistent with what he alleged in the first suit^ Admissions of fact» deliberately made in open court, with full knowledge, are also binding until withdrawn by leave.^ Thus, ■ecured by the appeal, that of qaeetion- 117 ; Lehman v. Glarlc, 85 Ala. 109 ; ing the judgment appealed from, is not Ramsey v, Henderson, 91 Mo. 660. surrendered. There is no inconsistency * See Morgan v. Vaughan, T. Raym. because there is no afiBrmatign of the 456. validity of the judgment in the on€ ^ Wheelock v. Lee, 74 N. T. 496, position and a denial in the other.' explaining Ogdensburgh R. Co. v. Yer- Pittsburgh Ry. Co. », Swinney, 91 Ind. mont R. Co., 68 N. T. 176. S99, 408. " McQueen's Appeal, 104 Penn. St. 1 Glover v. Benjamin, 73 I1L 42. 595. * Daniel v. Morton, 16 Q. B. 198 ; • Cheney v. Selman, 71 Ga. 884 ; Bradley v. Coolbangh, 91 111. 148 ; Clark o. Clark, 70 Oa. 862 ; Smith v. Tilibetii v. Shapleigh, 60 N. H. 487, Fowler, 12 Lea, 168, 171 ; Stribling ». 491. Prettyman, 57 111. 871 ; Hull v. John- < Edwards's Appeal, 105 Penn. St ston, 90 111. 604 ; People v. Stockton 108. See Hewett r. Currier, 68 Wis. B. Co., 49 Cal. 414; Hyatt v. Burling- 886 ; Garrity v. Thompson, 64 Texas, ton Ry. Co., 68 Lowa, 662 ; Boubede v. 597; Adouev.Seeligsoo, 54Texas, 598; Aymes, 29 La. An. 274; Compton ante, p. 567. v. Sandford, 80 La. An. 888; Jones v. 4 Pittsburgh By. Co. v. Swtoney, 91 Congregation of Mt. Zion, ib. 711. See Ind. 899, 405. Mott v. Consnmers' Ice Co., 73 N. Y. * Greenville R. Co. o. Joyce, 8 Btch. 548, and ante, p. 571, note, in regard t» 720 PROCEDURE. [chap. XXVT. an agent's anthority cannot be admitted and disputed by the principal in the same trial.^ Nor, generally speaking, will one who procures a special decree be permitted to allege that there are mistakes in it ; ^ though this must not be taken too broadly. An admission in pleading of the legal sense and effect of a writing is not enough to estop the pleader upon the matter as a question of fact^ But assent to a particular proceeding in court, if given with knowledge of the facts, is conclusive.* Concessions too upon which rulings to a jury are given are conclusive.'^ So of recitals in judgment entries of material facts admitted or consented to.^ And if a plaintiff offer competent evidence to prove a fact and the court reject it on the objection of the defendant, the defend- ant will not afterwards be permitted to allege that the plaintiff failed to prove the facts embraced in the offer of evidence.^ So if a party has upon notice refused or without excuse failed to produce a writing in his possession, and the notifying party has thereupon given secondary evidence of its contents, the party notified will be estopped in the absence of fraud to produce it in evidence.® And where a party has been notified under rules of court that he may inspect a particular document which he will be required to admit in evidence as e. g. a ' counterpart of lease,' if he fail to inspect it he will not be permitted on the production of a document indorsed ' counterpart ' to say it is not the lease.^ ft the extent of the estoppel. A witness's 'on the ground that the levy did not de- statements are not conclosively admitted scribe it as his. Scolly v. Butler, 59 by not being contradicted. McComiitik Ga. 849. V. Pennsylvania Cent. R. Co., 99 N. Y. * First National Bank v, Warring- 05. Nor is a person estopped to deny ton, 40 Iowa, 528. admissions made by him on the trial as * Marquette R. Co. v, Marcott, 41 witness. Wilkinson v. Wilson, 71 Ga. Mich. 488. 497. Contra, in Louisiana. Folger v, • Kemp v, Lyon, 76 Ala. 212. Pslraer, 85 La. An. 748. See ante, pp. ▼ Thompson v, McKay, 41 Csl. 221. 114, note 1, and 671, note 2. » Doe d. Thompson v. Hodgson, 12 1 People V, Stockton R. Co., 49 CaL Ad. & E. 185. 414. » Doe d. Wright v. Smith, 8 Ad. & « Wood V, Rawlings, 76 111. 206. E. 255. Whether it is too late to cor- • Thayer v. Arnold, 82 Mich. 886. rect at the trial a statement made to the On the other hand, one who has sworn opposite party before suit, concerning that property levied upon is another^s the cause of action, which mif;ht have eannot assert that it is not that person's been corrected before, see Connecticut CHAP. XXVI.] INCONSISTENT POSITIONS IN COURT. 721 This estoppel prevails aa well of plain inferences from the facts in hand as of the facts themselves. Thus, to ask for a nonsuit or to rest a defence upon a proposition of law without asking to go to a jury estops the party on appeal to say that there were questions of fact in the case for a jury.^ So pleading a levy by writ on property as a defence to an action of replevin estops the party to say that he had no possession.^ Indeed, the estoppel appears to prevail also in r^ard to inferences of law that follow regularly from the position taken. Thus, it is held in GeoiHjia that when counsel demands the right of closing and the demand is granted, he thereby becomes estopped to say that the burden of proof is not upon him.^ So if a dismissal is entered in favor of one of several defendants sued upon a joint contract, the plaintiff will be barred from proceeding against the others.^ And if one intervene in the cause of another, or bring suit before a particular court, he cannot at will deny the jurisdiction of the court he has sought ; ^ though be may of course withdraw his claim on paying costs. Again, the party who has committed a fault in pleading which has not been noticed by the other side cannot object that the other side has followed the error.^ In the case cited the de- fendant to an action by an indorsee against him as acceptor of two bills of exchange pleaded that the bills had been accepted for the accommodation of the drawer ; that after they were due the drawer gave the plaintiff other bills of larger amount, for which the plaintiff agreed to give him time on the bills now sued upon ; that new bills were given in payment of the bills now sued upon ; and that the transaction was unknown to the defend- ant. To this the plaintiff replied de injuria. The defendant now demurred on the ground that the replication attempted to put in issue two matters of defence ; but the demurrer was overruled.^ Ins. Co. V, Schwenk, 94 U. S. 693, dis. < Boyle v. Webrtcr, 17 Q. B. 950 ; tingnishing Campbell v. Charter Oak ante, p. 104. Ins. Co., 10 Allen, 218, and Irving v, » Jack v, D. & M. B. Co., 49 Iowa, Excelsior Ins. Co., 1 Boew. 600. 627 ; Buckley v, Stevens, 29 Ohio St. 1 Orroes o. Dauchy, 82 N. Y. 448 ; 620. See Fahnestock v, Gilham, 77 111. East Hampton v. Kirk, 68 N. Y. 459, 687 ; Kennedy v, Redwine, 69 Ga. 827. 464. * Reynolds v. Blackburn, 7 Ad. & E. 3 Godfrey v. Brown, 86 Ul. 454. 161. * Smith V. Haire, 68 Ga. 446. ^ In the coune of the aignment Pat- 46 722 PBOCEDUBB. [chap. ZXVI. The principle under consideration will apply to another sait than the one in which the action was taken, whei« the second suit grows out of the judgment in the firat.^ It is laid down that a defendant who obtains judgment upon an allt^tion that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth.' Thus, in Hooker v. Hub- bard the defendant pleaded to a suit upon a promissory note that he had given another in payment and renewal of it, and had judgment accordingly. He was now sued upon the renewal note, and attempted to set up the defence that the second note was given upon a condition which had never been fulfilled, but the court held him estopped. It was declared by the court that if the second note had been delivered upon a condition, then by pleading it as payment of the first, upon which he was liable, he had waived the right to take the benefit of the non-performance of the condition and lutified the absolute delivery of the present note. ' It could not have been effectual as a payment^ unless it were a valid and binding instrument' It will be seen from these cases that the rule requiring con- sistency of action before the courts is no arbitrary rule, but one demanded, as was suggested at the opening of this chapter, by the very object of courts of justice. Where, then, no wrong would be done to the court or to other parties to a cause by teson, J. said to counsel for the defend- 116 ; Lehman i». Clark, 85 Ala. 109, ant : ' You attempt to set up a plea 118 ; Clay v. Buchanan, 69 Iowa, 88 ; which you allege to lie had, because, as Hooker v» Hubbard, 102 Mnss, 289 ; you contend, the plaintiff has made a Philadelphia R. Co. v. Howard, 18 had replication. If your plea is double. How. 807 ; Ogden v. Rowley, 16 Ind. and there ia a general replication, you 66; Pendleton v. Dalton, 92 N. Gar. oanuDt take advantage of the fault of 185 (resisting enforcement of a contract your plea to make the replication bad.' successfully as within the Statute of 1 A surety in a replevjn bond, hav- Frauds estops the party to rely upon it ing by his execution thereof in the re- in a suit for money paid thereon) ; Per- plevin procei-dings enabled the plaintiff kins v. Jones, 62 Iowa, 845. If one re- to obftiin possession of the property in fuse to surrender possession ^^f land on controversy, will be estopped to con- ground of want of right in him demand- trovert the jurisdiction of the court over ing, who thereupon brings suit for it, the persons of the parties. Harbaugh v. the party refusing cannot now deny his Allwrteon, 102 Ind. 69. possession. Kirkland v. Trott, 66 Ala. * Hill V. Huckabee, 70 Ala. 188, 417. See also Walker v. Walker, 87 188 ; CaldweU v. Smith, 77 Ala. 157, La. An. 107. 165 ; Jones v. McPhilUpa, 82 Ala. 102, CHAP. XXYI.] INCONSISTENT POSITIONS IN COUBT. 728 permitting a change of position, a change should in principle and will in fact be allowed.^ Thus, where a party has given notice of appeal by mistake to a particular court, when the appeal should have been made to another court, and has dis- covered his mistake before any step has been taken by others in consequence, he may at urUl correct himself ; ' but only (at will) upon the footing that no prejudice is done to others.^ ^ Quoted with approval in Green Bay Whei*e a special finding of an immate- Canal Co. v. Hewitt, 62 Wis. 816, 827, rial fact has been mate upon an erro- and in Pittsburgh Ry. Co. «. Swinney, neoua instruction, the party may still 91 Ind. 899, 404. have the benefit of other and material 3 Regina v, Liverpool, 15 Q. B. 1070 ; findings, which ought to have resulted Eegina v, Buckinghamshire, 4 EL & B. in judgment for him. Detroit Ry. Co. 260. . V. Hayt, 55 Mich. 847. * Regina v. Salop, 4 EL & B. 257. 724 PBOCBa>UBB. [chap* zzvil CHAPTER XXVIL PRECEDENTS IN PLEADINa. We present in conclusion the following common-law prece- dents in pleading by way of estoppel. Some of the forms are taken from Ohitty's Precedents in Pleading; some are from •Story's Pleadings ; some are from Bullen and Leake's Prece- dents ; and others are from the pleadings in the reported cases* § 1. Commencement and Conclusion of a Pka of Matter of Estoppel} The defendant by , his attorney [or in person], says that the plaintiff ought not to be admitted to say [stating the matter to which the estoppel relates], because he says [state the matter of estoppel and conclude]. And this the defendant is ready to verify; wherefore he prays judgment if the plainti£P ought to be admitted against his own acknowledgment by his deed aforesaid [or otherwise, according to the estoppel] to say [stating the mat- ter to which the estoppel relates, as before]. § 2. Heplication hy Way of Estoppel to a Plea.^ That the defendant ought not to be admitted to plead the said plea by him above pleaded, because he says [state the mat- ter of estoppel]. And this the plaintiff is ready to verify ; where- fore he prays judgment if the defendant ought to be admitted, contrary to his own acknowledgment and deed [or otherwise], to plead that [here state the matter to which the estoppel relates]. 1 Chitty, 408, 8d £ng. ed. * Chitty, 408, 8d Eng. ed. SECT, m.] PBECEDEMTS IN PtEADINO. 725 § 3. Flea hy Matter of Estoppel that the Plaintiff Irought an Action against the Defendant for the same Cause of Action, and that the Defendant had Jvdgmeni} Bep- lications, etc. [Commencement, § 1, supra.] That the plaintiff before this suit brought an action against the defendant in the Court of , for the said debt [or cause of action] in the declaration men- tioned, and thereupon such proceedings were had that afterwards, and before [or after ^] this suit, it was considered by the judg- ment of the said court that the plaintiff should take nothing by his writ in respect of the said debt [or cause of action], as by the record of the said court fully appears, and which said judg- ment is still in full force. [Conclude as supra.] Another form : ^ And the said D comes and defends, etc., when, etc., and says that the plaintiff (actio non), because he says that formerly, to wit, at a court of Common Pleas, holden at, etc., within and for the county of, etc., on, etc., the said plain* tiff impleaded the said D in a certain plea of trespass on the case on promises, to the damage of the said plaintiff $100 on occasion of not performing the very same identical promises in the said declamtion mentioned. And such proceedings were therefore had, that afterwards,^ to wit, at a term of the court holden at, etc., within and for, etc., on, etc., the said plaintiff by the consideration of the same court, recovered against, the said D in that plea 850 for his damages, which he had sustained by reason of the not performing the very same identical promises in said declaration mentioned, together with $10, costs of suit, whereof the said D was convicted, as by the record thereof now 1 1 Chitty, PI. 408, 8d Eng. ed. For • Story's Pleadings, 186, Oliver's ed. forms see Palmer v. Temple, 9 Ad. & E. * If the action be carried to the Su- 608 ; Overton v. Harvey, 9 C. B. 324 ; preme Conrt this form is sufficient ; and Eastmure o. Laws, 6 Bing. N. C. 444 ; the defendant may say, ' And that such Gordon v. Whitehouse, 18 C. B. 747. were the proceedings thereupon that 3 It is held to be immaterial whether afterwards at the Supreme Court, begun the former judgment were rendered .be- and holden at, etc., withiq and for, etc., fore or after the present action. Case- on, etc., the said plaintiff recovered beer V. Mowry, 66 Penn. 419; Duffy v. judgment against the said D, for, etc.* Lytle, 6 Watts, 120; Child v. Eureka It is not necessary that the particular Powder Works, 46 N. H. 647. proceedings should be stated* 1 726 PROCEDURE. [chap. XXYH. remaining in the same court more fully appears; which said judgment still remains in full force and unreversed. And this the said D is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his action aforesaid thereof against him^ etc. Former judgment on appeal to Supreme Court, with continn- ance. [As last above as far as ' whereof the said D was con- victed.'] From which said judgment the said D appealed to the Supreme Court then next to be holden at, etc., within and for the same county,^ on, etc. ; and afterwards, to wit, at the said Supreme Court holden at, etc., on, etc,, the said D entered his said appeal. And such were the proceedings thereupon had that afterwards, to wit, at a term of the said Supreme Court holden at, etc., on, etc, the said plaintiff by the consideration of the same court recovered judgment, etc., as appears by the rec- ords thereof in the same court remaining ; which said judgment remains in full force and unreversed. And this the said D is ready to verify. Wherefore, etc Former judgment and appeal, and appeal not entdred, and judgment affirmed. [As above.] From which said judgment the said D appealed to the Supreme Court then next to be holden at, etc., on, etc ; and afterwards, to wit, at said Supreme Court holden at, etc., on, etc., the said D did not prosecute his said appeal ; whereupon in the same term, on the complaint of said plaintiff, by the consideration of the same court, the said for* mer judgment was affirmed with additional damages and costs. And thereupon it was considered by the same court that the said plaintiff recover against the said D $50 damages and $10 costs of suit, as appears by the records thereof in the same court remaining; which said judgment remains in full force and unreversed. And all this the said D is ready to verify. Wherefore, etc Seplication of nul tiel record. And the plaintiff says that, notwithstanding anything by the said D above in pleading al- leged, he, the plaintiff, ought not to be barred from having his said action thereof maintained against said D, because the plain- ^ Thia of coarse to be omitted where the Supreme Coart has bat ooe place, for holding session. SECT. III.] PRECEDENTS IN PLEADING. 727 tiff says that there is not any such record of the judgment afore- said recovered by him, the plaintiff, against the said D in the said Court of Common Pleas held, etc., as the said D hath above in pleading alleged. And this the plaintiff is ready to verify.^ Wherefore he prays judgment and his damages by reason of the promises to be adjudged to him, etc. Bejoinder. And the said D says that there is such a record of the judgment aforesaid, recovered by the plaintiff against him, the said D, remaining in the Court of Common Pleas within and for the county of, etc., as he, the said D, hath above in pleading alleged; and this he is ready to verify by the said record, etc. Beplication, i^rith new assignment of other promises. And the plaintiff says (precludi non), because he says that although true it is that he, the plaintiff, at a court of, etc., held at, etc., on, etc., within and for the county of, etc., did implead the said D, in the said court, in a certain plea of trespass on the case in promises, for the not performing certain promises ; and that such proceed- ings were thereupon had in that plea in the same court that afterwards, to wit, at a court, etc., held, etc., on, etc., he, the plain- tiff, recovered against the said D by the judgment and consider- ation of the same court $500, in and by the said court adjudged to him for his damages, which he had sustained as well by the reason of not performing the said promises, as for his costs and charges by him about his suit in that behalf expended ; whereof the said D was convicted, as by the record and proceedings thereof in the same court remaining fully appears ; and that the said judgment remains in full force and effect, not reversed, annulled, defeated, or avoided. Yet for replication in this behalf the plaintiff says that the said several promiseis for which the plaintiff impleaded the said D and recovered damages, as in the said record mentioned, were not, nor are any or either of them, the same identical promises as in the said eight counts of the said declaration of the plaintiff above are mentioned, but are other and different promises than in the said eight counts of the said declaration mentioned, and whereof the plaintiff has now ^ If the plaintiff does not wish the the record aforesaid,' and omit the defendant to rejoin, he may add, 'by prayer of jadgment 728 PBOGEDUBE. [CHAP. XTTTL impleaded the said D in that behalf, and above in his said dec- laration in that behalf complained against him ; for that the plaintiff has now^ impleaded him for that, wliereas, in the life- time of the said A, they, the said A and the said D, were in- debted to the plaintiff in the sum of $1,000, other and different than the sum in the said record mentioned, for other and differ- ent work and labor, eta, than in the said record mentioned, of the plaintiff before that time done, performed, and bestowed by the said plaintiff for the said D and the said A on their retainer and at their special request ; and for other and different money paid, laid out, and expended than the money in said record mentioned by the plaintiff, at the like special request of the said A and the said D, etc* ; and that, being so indebted, they, the said A and the said D, in the lifetime of said A, afterwards, to wit, on, etc., at, etc., in consideration thereof, etc. [in common form, and so insert the other counts in the declaration, stating them to be for other and different demands] ; and which said last-mentioned promises so mentioned and set forth in the said eight counts of the said now declaration of the plaintiff, and for the non-performance whereof the plaintiff has above in his said declaration complained against the said D, are other and differ- ent promises than those for which the plaintiff recovered dam- ages as in the said record, and in the plea of the said D above secondly pleaded in bar are mentioned ; and this, etc Where- foi'e, inasmuch as the said D has not answered the said com- plaint of the plaintiff as to the breach and non-performance of the said promises in the said first eight counts of the said dec- laration mentioned, and so newly above assigned, he, the said plaintiff, prays judgment and his damages, etc., to be adjudged to him. Eejoinder. And the said D, as to the said plea of the plain- tiff by him first above pleaded by way of new assignment, and in reply to the said plea of the said D secondly above pleaded in bar, says that he did not promise in manner and form, as the plaintiff has above in his said new assignment complained against him ; and of this he puts himself upon the country. Former recovery in an action by executor against lessee. And the said D comes, etc., when, etc., and says that the said plaintiff, SECT. IV.] PRECEDENTS IN PLEADING. 729 assignee as aforesaid (actio non), because he says that after the making of the said articles of agreement in the said declaration mentioned, and after the said breach of covenant therein com* plained of, and in the lifetime of the said A in the said agree- ment and declaration mentioned, and before [or after ^] the commencement of the action of the said plaintiff as assignee as aforesaid, to wit, at a court, etc., held, etc., on, etc., he, the said A, impleaded the said D of and for the same identical breach of covenant in the said declaration above mentioned and there complained of; and such proceedings were thereupon had in the same court, before the same judges, that afterwards in the life- time of the said A, to wit, at the same coturt, he, the said A, by the consideration and judgment of the same court, recovered against the said D $1,000, as well for damages which he had sustained as well by reason of the very same identical breach of covenant in the said declaiation mentioned and therein com- plained of, as for his costs and charges by him in his suit in that behalf expended; whereof the said D is convicted as by the said record and proceedings thereof, which remain in the same court in full force and effect, may fully appear ; and this, etc. Wherefore, etc. § 4. Plea of Estoppel hy Verdict of a particular Matter adjudicated.^ In the well-known case of Outram v, Morewood ^ the plaintiff brought an action of trespass against the defendants, Morewood and wife, for digging and getting out coals from a coal mine, alleged by the plaintiff to be within and under his close, called the Cow Close. The defendants pleaded and showed title regu- larly brought down to them, in right of the wife, from one Sir John Zoucb, who in the 39th Elizabeth was seised in fee of the manor of Alfreton, and of certain messuages and lands within * Cosebeer v. Mowry, 55 Penn. St. ib. 200 ; Lea r. Lea, ib. 493 ; Thurston 419 ; and cases supra, p. 725, note 2. v. Thurston, ib. 89 ; Hubert o. Fera, ib. 3 See ante, pp. 90 et seq. Without 198 ; Wadsworth r. Connell, 104 lU. judgment a special finding does not 869, 374 ; ante, p. 51. work an estoppel. Hawkes v. Trues- ' 8 East, 846. deU, 99 Mass. 657 ; Barlen v. Shannon, 780 PROCEDUBE. [chap. XSYH. the manor, under which title they claimed all the coals under those lands except such as were embraced under a certain de- scription. And the defendants averred that the coals in question were under the lands of the said Zouch, and were not under any of the premises mentioned in the exception. The replication to this plea was the important part of the pleadings, and we present it at length. It was sustained upon thorough consideration by Lord EUenborough. It stated that the defendants ought not to be admitted in their plea to aver that the said coal mine or vein of coals in the declaration men- tioned, at the time of the making the indenture of bargain and salein the said plea mentioned, was part and parcel of the said coal mines, veins, and delphs of coals by the said indenture bar- gained and sold as aforesaid ; because heretofore, in Easter term, 32 Geo. 3, the plaintiff impleaded the defendant Ellen, then Ellen Morewood, widow, in a certain plea of trespass, and therein de- clared against her for that the said Ellen, on the 5th of May, 1792, with force and arms broke and entered a certain coal mine or vein of coals of the plaintiff, situate and being within and under a certain part of a certain close of the plaintiff, called Cow Close, or the Great Cow Pasture, in the parish of Alfreton, in the said county of Derby, and dug out of the said coal mine or vein of coals of the plaintiff large quantities of coals, etc., and took and carried away the same, etc. ; and that in Trinity term, 32 Geo. 3, the defendant Ellen defended the force, etc. ; and as to breaking and entering the said coal mines, etc., under the Cow. Close, etc., pleaded that the plaintiff ought not to maintain his said action against her, because the said John Zouch, on the 2d of November, 38 Eliz., was seised in fee of and in the said manor of Alfreton, and divers messuages, lands, and tenements in the parish of Alfreton aforesaid, in the said county, with the appurtenances. And the said Ellen, in and by her said plea in the said former suit, after further setting forth (amongst other things) the said indenture of bargain and sale in the said plea mentioned, in manner and forms as the same indenture is in that plea set forth, averred that the said coal mine or vein of coals in the declaration hereinbefore mentioned, at the time of the making of the said indenturn of bargain and sale, SECT. IV.] PRECEDENTS IN PLEADING. 731 was part and parcel of the said coal mines, veins, and delpbs of coals, by the said indenture bargained and sold as aforesaid, ^ud the said Ellen, in and by her said plea in the said former suit, claimed to be entitled to the said coal mine or vein of coals, in the said hereinbefore-recited declaration mentioned, by the same means, and in manner and form, as the said defendants have above in their said plea in this suit alleged ; and that she, the said Ellen, was ready to verify : wherefore she prayed judg- ment, etc And the said plaintiff, as to the said plea of the said Ellen in the said former suit, said that he ought not to be barred, etc. ; because^ protesting that the said Sir John Zouch was not seised in fee of and in the said close in the said herein- before-recited declaration mentioned, or of or in the coals, veins, mines, and delphs of coals in or under the same, or any part thereof, as by the said last-mentioned- plea was above supposed, he, the said plaintiff, said that the said EUen, at the said several times when, etc, of her own wrong, broke and entered the said coal mine, etc., within and under the said part of the said close of the plaintiff, called the Cow Close, etc, in the hereinbefore- recited declaration mentioned, and dug out of the said coal mines, etc, large quantities of coals, and took and carried away the same, etc., in manner and form as the plaintiff had above complained against her ; without this, that the said coal mine or vein of coals in the said first count of the said hereinbefore- recited declaration mentioned, at the time of the making of the said indenture of bargain and sale in that plea first mentioned, was part and parcel of the said coal mines, veins, and delphs of coal by the said indenture bargained and sold as aforesaid, in manner as the said Ellen had in the said plea above alleged ; and this he was ready to verify : wherefore the plaintiff prayed judgment, etc And the said Ellen, as before, said that the said coal mine or vein of coal in the said first count of the said hereinbefore^ecited declaration mentioned, at the time of the making of the said indenture of bargain and sale in her said plea first mentioned, was part and parcel of the said coal mines, veins, and delphs of coal, by the said indenture bargained and sold as aforesaid, in manner and form as the said Ellen had in the said plea alleged ; and of that she put herself upon the 782 PBOCEDUBB. [chap. XXVH. Country^ and the said Joseph did so likewise. And such further proceedings were thereupon had that afterwards, at the assizea at Derby on Saturday the 16th of March, in the 33 Geo. 3, the said issue, so joined, etc., was tried by a jury of the county, eta ; and as to the same issue, the jurors of that jury upon their oath said that the coal mine or vein of coals, in the first count of the said hereinbefore-recited declaration mentioned, at the time of the making of the indenture of bargain and sale first mentioned in the plea of the said Ellen, in the said former suit, were not part and parcel of the said coal mines, veins, and delphs of coals, by the said indenture bargained and sold, in manner and form as the said Ellen had in that liijehalf in pleading alleged ; and they assessed the plaintiff his damages, etc. That such further proceedings were thereupon had that the plaintiff in Trinity terra, 33 Geo. 3, recovered judgment, etc., which judgment is still in force, etc The replication then averred that the plain- tiff and Ellen, the defendant named in that record, are the same parties as in this suit, and that the said coal mine or vein of coals in that record mentioned, and the said coal mine or vein of coals in the pleadings in this suit mentioned, are one and the same ; wherefore the plaintiff prayed judgment if the defendants ought to be admitted, against the said record, to aver that the said coal mine or vein of coals in the declaration mentioned, at the time of the making of the said indenture of bargain and sale, was pai*t and parcel of the said coal mine, veins, and delphs of coals, by the said indenture bargained and sold as aforesaid. § 5. JReplication by Way of Estoppel to a Plea of Set-off, of a Judgrnent in an inferior Court upon the same Matter. The plaintiff, as to the defendamt's plea, says that the de- fendant ought not to be admitted to plead the said plea, because he says that the now defendant, in the county court of , holden at , then being a court duly constituted and holden under the statutes relating to the county courts, and then having jurisdiction to hear and determine the plaint hereinafter men- tioned, levied a plaint against the now plaintiff for the recoveiy of the same debt which the defendant now seeks to set off SKCrr. VI.] PBECEDBNTS IK PLEADING. 788 against the now plaintiff's claim, to which that plea is pleaded ; and such proceedings were thereupon had in the said court, in the matter of the said plaint, that afterwards it was considered and adjudged by the said court, in the matter of the said plaint> that the now plaintiff did not owe to the now defendant the said debt or any part thereof, and that the now defendant should take nothing by his said plaint in that behalf, and the said judgment still remains in force : wherefore he prays judgment if the de- fendant ought to be admitted, etc*^ § 6. Beplication to a Plea traversing the Plaintiff's Title to Land, — an Estoppel ly a Judgment in JEjectment. [CJommence as in § 5, supra.] That on the day and year last aforesaid, the plaintiff, for the purpose of recovering possession of the said land, sued out of the Court of a writ of eject- ment, directed to the defendant by name, being the person then in possession of the said land, and to all persons entitled to de- fend the possession of the said land, to the possession whereof the plaintiff by the said writ claimed to be then entitled and to eject all other persons therefrom, commanding the said defend- ant and the said persons entitled to defend the possession of the said land, or such of them as denied the alleged title of the plaintiff, within sixteen days after service of the said writ to appear in the said Court of to defend the said property, or such part thereof as they might be advised, in default whereof judgment might be signed and they turned out of possession. And such proceedings were thereupon had in the .said court, upon the said writ, that by the judgment of the said court it was considered that the plaintiff should recover the possession of the said land ; and afterwards, and by virtue of the said judgment, the plaintiff entered into possession of the said land : wherefore the plaintiff prays judgment whether the defendant ought to be admitted, etc.* ^ For similar plea in estoppel see Eastmare v. Laws, 5 Bing. N. C. 44i. * For similar replications see Doe v, Wellsman, 2 £z. 868 ; 'Wilkinson « Eirby, 15 0. B. 480, 433. 784 PBOOBDUBB. [chap. XXVJh § 7. Plea of JudgmerU recovered hy the Plaintiff in a superior Court for the same Debt or Cause of Action, And the said defendant, by, etc., comes and defends, etc., and says that the said plaintiff ought not to have or maintain his aforesaid action, etc., because he says that the plaintiff hereto- fore, in the Court of , at , sued the defendant in an action for the same debt [or cause of action] as in the declara- tion alleged, and such proceedings were thereupon had in that action that the plaintiff afterwards, by the judgment of the said court, recovered against the defendant $ for the said debt [or cause of action], and his costs of suit in that behalf; and the said judgment still remains in force, and this the defend- ant is ready to verify, etc.: wherefore the defendant prays judg- ment whether the plaintiff ought to have or maintain his action, etc. If the judgment was rendered in an inferior court, conform the plea in this respect to § 5, supra. The following precedent for a similar plea is given by Chitty, and is perhaps preferable to the one above given.^ [Commence- ment as supra.] That the said plaintiff heretofore, to wit, in term, A. i). , in the Court of , at , before , impleaded the said defendant in a certain plea of trespass on the case on promises to the damage of the said plaintiff of % , for the not performing the very same identical promises and undertakings, and each and every of them in the said declaration mentioned; and such proceedings were thereupon had in the said court in that plea, that afterwards, to wit, in the term, the said plaintiff, by the consideration and judgment of the said court, recovered in the said plea against the said defendant S for the damages which he had sustained, as well on occasion of the not performing the same identical promises and undertakings in the said declaration mentioned, as for the costs and charges by him about his suit in that behalf expended, whereof the said defendant was convicted; as by the record and proceedings thereof, still remaining in the said court at 1 8 Ghitly, Pleading, 929. SECT. IZ.] PRECEDENTS IN PLEADING. 786 aforesaid, more fully and at lai^ appears ; which said judgment still remains in full force and effect, not in the least reversed, satisfied, or made void. And this, etc. [Conclude as supra.] § 8. Pleas in Ddt and Scire Fcccias on Judgments. m By executor. Nul tiel record ; and joint judgment, one of defeudauts being still alive. ^ And the said D comes and de- fends the force and injury when, etc., and says that the plaintiff (actio non), because he says that there is no such record of the recovery aforesaid in the said court now here remaining, as the said plaintiff by his declaration aforesaid has above supposed. And this he is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his said action against him, the said D, etc. And the said D, with leave of the court here, further defends the force and injury when, etc., and says that the plaintiff (actio non) because he saith that the judgment aforesaid in the said declaration of the said plaintiff mentioned, to be had and recov- ered against the said A in his lifetime, was also had and recovered as well against a certain B as against the said A in his life- time, as appears by the aforesaid record thereof in the court here now remaining. And the said D says that the said A died on, etc., at, etc., and the aforesaid B survived the said A, to wit, at, etc. And this he, the said J), is ready to verify. Wherefore, etc. § 9. Pka of Judgment for Defendant pro eadem Cansa rendered in a foreign Court The following plea to indebitatus assumpsit was pleaded in Plummer v. Woodburne ;* it was adjudged bad for the omissioh to state that the judgment rendered in the foreign court was final and conclusive there. We have supplied the omission. As to the first, second, fourth, sixth, and eighth counts, the 1 Story's PleadinfUB, 888, Oliver'B ed. See ibid. pp. 618, 619, as to like fonna in Rcire facias on jndgm'enta* s 4 Barn. & 0. 626. 786 FBOCEDUBE« [CHAP. XXVH. defeudaDt says that the plaintiff ought not to be admitted to say that the defendant undertook and promised as in those counts or any of them mentioned ; because the plaintiff and his three late copartners, on the 27th of February, 1817, in a certain court of judicature of our sovereign lord, the King, holden in parts beyond the seas« in and for the island of St Christopher, to wit, a certain court of record, called the Court of King's Bench and Common Pleas, before John Garrett, Chief Justice, etc., at, etc., impleaded the said defendant in a certain plea of trespass on the case upon promises, and in that suit declared against the defendant, amongst other things, for that whereas [the plea here set out the declaration in the former action ver- batim, which appeared to be for the same causes of action men- tioned in the first, second, fourth, fifth, sixth, and eighth counts of the declaration in the present suit] ; that to such former declaration the defendant pleaded non assumpsit, upon which issue was joined. And such further proceedings were there- upon had in the said former suit, that afterwards, to wit, at, etc., the said issue joined was tried by a jury of twelve men, and as to that issue the jurors of that jury upon their oath did say, that they found for the defendant with one penny costs. The plea then stated that judgment was given for the defendant upon and agreeably to the said verdict, and that that judgment was afiirmed by a court of error in the island, and by the King in council, adding : Which said judgments are still in full force, as by the record, etc. Averment that the said proceedings, so had in the courts of the said island and in the said Court of Privy Council, were at the times when they were so had within the jurisdiction of the same courts respectively, and were carried on in conformity with and according to the due course of law at those times established in force in the island aforesaid. And that the said several sums and debts in the first ei^rht counts respectively mentioned were and are parcels of the said several sums of money, and of the said supposed debts mentioned in those parts of the declaration in the said former suit, etc. ; and that the defendant did not promise or undertake in respect of the said sums or debts in the first eight counts mentioned, or any of them, or any part thereof, otherwise than was alleged in SECT. IZ.] PRECEDENTS IN PLEADING. 73T those parts of the declaration, in the said former suit, which are herein above set forth. [And the defendant further alleges that the said judgments rendered respectively as above mentioned were, and still are, final and conclusive in the said island of St. Christopher, according to the laws thereof, and were and still Hire a bar in said island to any further action by the said plaintiff in respect of the said supposed causes of action in the said counts of the plaintiff's present declaration mentioned.] And this, etc. Wherefore, etc. Another plea of the same character from Callandar v, Dit- trich.^ Fourthly (to the first and second counts), that before the commencement of this suit, and. before the commencement of the proceedings next hereinafter mentioned, the defendant was resident in parts beyond the seas, to wit, at Koenigsberg, in the kingdom of Prussia, within the allegiance of the King of Prussia, and within the jurisdiction of a certain court of judica- ture, called the Royal Prussian Court of Commerce and Admi- ralty of Koenigsberg; and that afterwards and whilst the defendant was resident at Koenigsberg aforesaid, and before the commencement of this suit, to wit, on, etc, the plaintiff impleaded the defendant, in the said court of judicature, for not performing the very same identical promises, and each and every of them, as are in the first and second counts of the decla- ration in this action mentioned, and for the damages alleged to have been sustained by the plaintiff thereby ; the same court having jurisdiction in the premises. And such proceedings were thereupon had in the said court that afterwards and before the commencement of this suit, to wit, on the 31st of May, 1839, a judgment or decree was pronounced by the said court, whereby it was adjudged and declared that the plaintiff had no cause of action against the defendant in respect of the damages alleged to have been sustained by him, the plaintiff, through the non-performance of the said promises ; and it was further or- dered and decreed by the said judgment or decree that the plaintiff should pay the costs and expenses of the proceedings Ro had in the same court in that behalf; which judgment or decree was not in any way reversed or made void. And the 1 4 Man. & G. 68. 47 738 PROCEDURE. [chap. XXVII. defendant says that the said judgment or decree was and is final and conclusive between the parties to such suit, as to the sup* posed cause of action in the country where the same was pro- nounced, to wit, in the kingdom of Prussia aforesaid ; and that the plaintiff is precluded from all further litigation in respect of the same, and ought not further to importune or molest him, the defendant, in respect of such supposed cause of action, so adjudicated upon by the said judgment or decree as aforesaid. Verification.^ § 10. Estoppd by Deed. Replication in Trespass quare Clav^ sum {to a Plea justifying the Entry under a Stranger as Owner) of a Demise from the Defendant^ And the defendant further says that the said M P ought not to be admitted or received to plead the said plea by her above pleaded, as to so much thereof as alleged that the said F W P, at the several times when, etc., was seised of the said dwelling- house, etc., in which, etc., in manner and form as in the said plea was alleged, because the plaintiff says that, before the commit- ting of the several trespasses in the declaration mentioned, and before the said times when, etc., or any or either of them, to wit, on the 24th of March, 1836, the said M P demised the said dwelling-house, etc., in which, etc., to the plaintiff, to have and to hold the same to the plaintiff for the term of one whole year thence next ensuing, and fully to be complete and ended, and so on, from year to year, so long as the said M P and the plaintiff should respectively please, yielding the rent of £15, payable half-yearly, to wit, on the 29th of September and the 25th of March in every year, by even and equal portions ; which said demise and tenancy from year to year continued in full force and undetermined, untU at and after the said several times when, etc.. ; by virtue of which said demise the plaintiff after- wards, and before the said several times when, etc., or any or ^ The jadgment or decree produced, ' Darlington v. Piitchard, 4 Man. 4 however, did not support the plea; but G. 7S3. no objection was suggested to the TpUa, either by counsel or by the court. SECT. XI.] PBECEDENTS IN PLEADING. 789 either of them, entered into and upon, and became and was pos- sessed of the said dwelling-hoase, etc., in which, etc., for the said term so to him thereof demised as aforesaid, and remained and continued so possessed thereof, under and by virtue of the said demise from thenceforth until and at the said several times when, eta, in the declaration mentioned ; that afterwards and before the said several times when, etc, to wit, on the 29th of September, in the year last aforesaid, the plainti£f paid to the said M P, and she, the said M F, then received from the plaintiff, the sum of £8, as and for the rent aforesaid, so reserved as aforesaid, for a certain time, to wit, for one half-year ending on the day and year last aforesaid ; and that afterwards, on each and every 25th of March and 29th of September, which hap- pened in every year from the time of the making of the said demise, until the said several times when, etc., the plaintiff, as tenant as aforesaid, duly paid to the said M P, and the said M P, as the landlady of the plaintiff as aforesaid, received and accepted from the plaintiff, all and every part of the rent which respectively grew due to the said M P from the plaintiff, under the demise and tenancy as aforesaid. Verification, and prayer of judgment if M P ought to be admitted or received, against the said demise and acceptance of rent as aforesaid, to plead the said plea by her above pleaded, as to so much thereof as alleged that the said F W P, at the several times when, etc, was seised of the said dwelling-house, etc., in manner and form, etc. § 11. Estoppel in Pais. Seplication to a Plea of the Tneompe- tency of the Payee of a BUI to indorse the same. The following replication, in an action by the indorsee of a bill of exchange against the acceptor, was held good on demur- rer in Smith v. Marsack : ^ That the defendant ought not to be permitted or received to plead the said plea by him above pleaded to the said second count of the declaration, or to say that the said G W, before and at the time she indorsed the said bill in the said second count mentioned, was the wife of the said E W, and that the said E W had not authorized or con- > 6 C. B. 486. 740 PsocEDUBB. [chap, zxyil sented to the said indorsement of the said bill by his said wife, or that the said G W had no power to indorse the said bill, and to transfer k> the plaintiiT the property therein, because the plaintiff says that the said C W was a married woman, and the wife of the said £ W before and at the time when she made the said bill in the said second count mentioned, and before and at the time of the acceptance of the said bill by the defendant, as well as at the time of the indorsement of the said bill to the plaintiff, as he, the defendant, before and at the said several times of the making and accepting and indorsing of the said bill respectively had, and had always had, full notice and knowl- edge ; that the plaintiff had not, either before or at the said sev- eral times of the making and accepting and indorsing of the said bill respectively, or either of them, or at any time before the commencement of this suit, known ^ that the said C W was a married woman and the wife of the said £ W, or that she had not power or authority to indorse the said bill, and to transfer to the plaintiff the property therein ; that he, the plaintiff, at the time of the indorsement of the said bill to the plaintiff, as in the second count mentioned, gave full value to the said C W for the indorsement of the said bill by the said C W to the plaintiff; and that he, the plaintiff, gave such value, and took the said bill, and became the indorser thereof, as 'in the said second count mentioned, upon the faith and credit of the de- fendant's acceptance of the said bill, and the said C W's having power, and being a person competent, qualified, and able to in- dorse the said bill to the plaintiff, and to transfer to the plaintiff the property in the same. Verification, and prayer of judgment if the defendant ought, contrary to his said acceptance of the said bill in the said second count mentioned, and to his own act and acknowledgment, to be admitted to say that the said C W, at the time of the said indorsement by her of the said bill in the said second count mentioned, was the wife of the said £ W, and that the said £ W had not at any time authorized or con- sented to the said indorsement of the said bill by his said wife, or that the said C W had no power to indorse the said bill and to transfer the propeity therein. ^ As to this see ante, p. 498. INDEX. INDEX. ABATEMENT, of writ, 53. ACCEPTANCE OF BILL OF EXCHANGE, adiuissioa of signature of drawer, 4dO-49d. not of indorser in ordinary cases, 488. except when, 481. acceptance for honor, 488. warrants capacity of drawer and of payee, 495. See Bills and Notks. ACCOUNT, effect of auditing, 093. ACKNOWLEDGMENT OF RECEIPT, under seal not conclusive, 383, 476. acknowledgments in parol, 471-470. generally not conclusive, 471. exceptions, 473. ^ acknowledgment in policies of marine insurance, 478. where acknowledgment has been acted on by third person, 473. warehouse receipts, 474. bill of lading, 475. receipt given an attaching oflEioer, 470. ACQUIESCENCE, only a fact tending to create a right, 457. when estoppel is raised by, 457, 620, 083, 093. ACQUITTAL OF GOODS. conclusiveness of judgment of, 226. ACT OF LEGISLATURE. when party estopped to dispute constitutionality of, 689* ACTION, in personam and in rem by the Roman law, 42, 43. in Bracton, 44. in Coke, 44. in modern English law, 44. when prematurely brought, judgment no estoppel, 56, note. form of, immaterial to estoppel, 200. See Caubr of Action; Plbadino, Practicb, ahd Eyidknob. ADJUDICATION. See Judgments. ^ 744 INDEX. ADJUSTMENT OP LOSS, by insurance company, 649. ADMINISTRATORS, verdict for plaintiff in suit against, on plea of plene administravit, 78, 279. no privity between administrator or executor and heir or devisee, 146, 147. relation of administrator de bonis non to his predecessor, 148. not like executor of executor, 148. of different states or countries, 1^9. when estopped to claim property found among assets of the estate, 554. not estopped to amend inventory when, 55o, note. when estopped to deny having funds, 555, note. estoppel against one of several estops all, 599. inducing administrator to proceed to an inventory, 645, note. See Probate, Decrees of. ADMIRALTY, English court of, an inferior court, 205. otherwise of Federal courts of United States, 205, 206. conclusiveness of domestic judgments in, 206. adjudications of prize in, 221. conclusive both of change of property and ground of judgment, 221. adjudications in cases of ooUisiou, 222. foreign judgments in, 223. breach of warranty of neutrality under insurance policy, 240. finding that vessel was enemy property, 240. immaterial that sentence was erroneous, 242. sale of wreck and derelict, 246. judgments in, conclusive only of necessary matters, 247* possible qualification of rule, 248. obscure statements of record, 249. jurisdiction of court, 250-253. constitution of foreign tribunal, 253. fraud in obtaining judgment, 254. ADMISSION, estoppels considered as, 329, note. admissions in court, 571, note. no estoppel unless acted on, 638. ADVERSARY PARTIES, rule of res judicata in regard to. 101. AFTER-ACQUIRED PROPERTY. See Covenants. AGENCY, judgment against principal, effect on agent, 120-127. effect of suit by agent in his own name in right of principal, 126. distinguished from estoppel, 457, 565. holding one out as agent, 565. representations of agents, 598. assuming to act as principal, 687. INDEX. 745 AGREED JUDGMENTS, coDclusiTeness of, 72. ALGIERS, courts of, 239. ALIMONY, effect of decree of divorce, 276, 277. *ALL DEMANDS,' 166. ' ALL RIGHT,' 581, 682. APPEARANCE, by attorney, 208. special, to contest jurisdiction, 290. APPOINTMENT, POWERS OF, election growing out of exercise of, 678. ARBITRATION AND AWARD, when conclusive, 68. ASSIGNEE OF PATENT, not permitted to deny validity of patent when, 552, 553. ATTACHMENT, proceedings in, properly in personam, 49, 234. foreign attachment, 300. agreement to hold goods under, for plaintiff, 549, 567. ATTORNEY, denial of authority to appear in cause, 208. appearance by, 208, 290. ATTORNMENT, lessee may explain circumstaDoes of, 523. AUDITING ACCOUNT, effect of, 693. AWARD, when conclusive, 68. BAILOR AND BAILEE, under what circumstances bailee estopped to deny bailor's title, 548- 552. relation analogous to that of landlord and tenant, 548. whai*finger's possession, 549. receiptor for goods attached by officer, 549, 667. estoppel ends with dispossession, 549. BANKRUPTCY, adjudications upon validity of insolvency laws, 86. effect of judgment under insolvency laws, 283. non-disclosure of discbarge in, 589. BARGAIN AND SALE, DEEDS OF, origpin of, 425. void at law at first, 425. effect of, in chancery, 425. 746 IKDEZ. BARGAIN AND SALE, DEEDS OF, ^canUnved. effect of clause of warranty before the Statute of Uses, 427. effect of Statute of Uses upon this mode of conveyance, 428-446. whether it can pass future interests, 428-446. question considered, 438-446. distinction between case of grantor with and without seisin, 438. grantee of grantor having no seisin takes nothing, 438. warranty in such case, 439. no lien created so as to affect second grantee without notice after tiUe acquired, 441. ' no privity between grantor and grantee, 441. conveyance by disseisor, 444. See TiTLB BT ESTOPPBL. BILL IN CHANCERY, dismissal of, 63, 58, 61. BILL OP LADING, conclusiveness of, 475. BILLS AND NOTES, * notes and other demands,' 166, 167. action on two notes and withdrawal of one, 168. admission of genuineness, 480-405. acceptor of a bill estopped to deny signature of drawer, 481. effect of usage or agreement, 481, note. indorser estopped to deny signatures of prior parties, 482. admission of one's own signature, 482, note. acceptor not estopped to deny genuineness of any indorsement, 483. unless indorsement was put on the bill by the drawer before acoept- ance, 484. or unless bill is payable to fictitious person, 485. or unless bill accepted with knowledge, 486. estoppel of acceptor extends only to signature, and does not embrace body of the paper, 486. acceptance conclusively admits procuration to draw, 488. but not to indorse, 488. whether acceptance for honor is an admission of signature of the party for whose honor acceptance is given, 488. consequence of discovering for^ry too late to fix liability of prior parties, 490. effect of paying bill by acceptor whose acceptance is forged, 491. acceptor not estopped to deny genuineness of drawer's signature where holder took the bill beftTre acceptance, 491. effect of receiving forged paper as one's own genuine paper, 492. rule where holder, by custom or agreement, takes upon himself the duty of inquiry, 492. when holder aids in mistake of acceptor, 492. person selling bill or note without indorsing it warrants its genuine- ness, 494. negligence in drawing check or bill, 494. INDEX. 747 BILLS AND KOTES, -^ continued, admission of capacity, 495-499. execution of note an admission of payee's capacity to indorse, 495. so of acceptance of bill, 495. maker or acceptor cannot therefore allege that payee was a married woman, or a bankrupt, 496. admission not prospective, 497. indorsement implies warranty of capacity of all prior parties, 498. guarantor of bond estopped to deny competency of makers, 498. certification of checks, 499-605. bank estopped in Kew York and other states by teller's certificate ' good,' 500. contra in Massachusetts, 500. what amounts to certification, 504. transfer by indorser after liability fixed, 504. statement that note is ' all right,' 581, 582. BLOCKADE, judgment of breach of, 248. BOARD OF TRADE, holding oneself out as member of, 565, note* BONDS, recitals in, 377, 467. when corporation estopped to set up inyalidity of, 461-470. BOUNDARY, conclusiveness of decrees of commissioners of, 238. land bounded in deed by street, 370. knowledge of true boundary necessary in many states in order to raise an estoppel, in fixing line, 619. otherwise in other states, 620. long acquiescence, 620. limits of the estoppel, 621. CAPACITY, admission of that of drawer and payee of bill| 495-499. CAUSE OP ACTION, recurring damages, 171, 172. concealment of, 197. CERTAINTY, required in all estoppels, 61, £66, 578. CERTIFICATION OF CHECKS, in New York and elsewhere, 500. effect of, in Massachusetts, 500. what constitutes certification, 504. CHANCERY, dismissal of bill, 63, 58, 61. when decree final, 59. when decree in, no bar to suit at law, 59. T48 iin>BX. CHANCERY, — conHnued. jadgmeiit at law conclusive in, 201, 285. restraining actions at law upon judgments, 302--807. CHECKS, certification of, 499-505. CHURCH COURTS, decrees in, 65. COLLATERAL WARRANTY, explained, 387. COLLEGE ORDERS, conclusiveness of, 64. COLLISION, adjudication concerning, 222. COLLUSION, distinguished from other fraud, 213, 219, note. a ground of impeaching judgments, 213, 219, note. COMMERCIAL PAPER. See Bills and Notes. COMMON RECOVERY, operation of, 418. COMMON TITLE, disputing, 357. COMMONWEALTH, estoppel against, 341. COMPETENCY OF PARTIES. See Corporations; Infants; Lunatics; Marrtkp Womsr. COMPTROLLER OF CURRENCY, decisions of, 66. concealment; silence when one should have spoken, 586. See Conduct, Estoppel bt. CONDEMNATION OF GOODS, conclusiveness of judgment of, 224-226* CONDUCT, ESTOPPEL BY, origin of, 657. doctrine in equity, 657. Pickard t?. Sears, 558-669. holding out another as owner of property, 560. or as having right to dispose of it, 560. principle of the estoppel* 561. married women doing business for themselves, 661. conduct of cestui que trust may estop him, 661. signing note as principal, 562. allowing stock to be registered in one's name, 663. receiptors for goods levied upon, 567, 568. essentials to this estoppel, 570. INDEX. 749 CONDUCT, ESTOPPEL BY , — continued. there must have been a representation or concealment of material facts, 570. the representation must have been made with knowledge, 570. the party to whom it was made must have been ignorant of the fact«i, 570. it must have been made with the intention that it should be acted on, 570. the party must have been induced to act upon it, 570. the representation, .570^00. there need not be an express representation, 570. must concern facts, 572. must have reference generally to a present or past state of thingSi and not to future, 574. exception, 577. estoppel in pais distinguished from contract, 576. representation must be plain, 578. not a matter of inference, 578. such as would naturally be acted on, 582. representation obtained by fraud, 583. silence when operating as estoppel, 584. « standing by,' 585, 665, 671. illustrations of rule of silence, 585, 588. when silence will not raise estoppel, 588-595. illustrations, 588-595. silence concerning title of record, 594. possession is notice, 595. when a duty to speak exists, 595, 596. affects only parties and privies, 597. rule covers representations of agents, 598. married women, 599, 600. admissions of one of several administrators which estop him estop all, 599. whether married women may be estopped by conduct, 599. rule in Massachusetts, 599, 600. rule in Illinois, 601. rule in Indiana, 601. ' rule in Pennsylvania, 602. in cases of fraud without contract, 602. action of contract cannot be maintained, 604. whether infants may be estopped in pais, 605. conflict of authority, 605, 606. question considered, 606. doctrine of privity prevails, 607, 608. illustrations, 608. whether a purchaser of goods in privity with the seller, 609. knowledge of the facts, 609-626. the rule stated, 611. means of knowledge, 611. 750 INDEX. CONDUCT, ESTOPPEL BY, ^ conUnued. forgetfuInesB of facts, 615. mistake, 6 IS. in cases of boundary, 618. there must have been knowledge of the true boundary when inoorrect . one was agreed upon in order to an estoppel, 619. different rule in some states, 620. long acquiescence suflScient in these states, 620. limits of the estoppel, 621. mere survey raises no estoppel, 622. warehouse receipts given by mistake, 622. applying for shares in corporation in ignorance of its condition, 623. ignorance the result of gross negligence, 626, note. the intention, 628-637. the general rule, 629. intention may be actual or presumable, 629-635. party must know that representation would be acted upon, 629, 636. term * wilful ' in Pickard v. Sears, 630. in most cases the representation must amount to the contract or license of the party making it, 631, note. effect of negligence, 631. cases of dedication, 635. dedication may be in pais, 635. purix>rt of inquiry not underatood, 636. representation must have been acted upon, 638-652. the general rule, 638. no mere statement or admission can estop, 638. not material how acted on, 639. refraining from steps, 639. doing only what one is bound to do, 639. whether it must be exclusively acted on, 639, 640. representation must have been made before or at the time of change of position, 639, note. of value of horses, 641. of title to stock, 641. sheriff*s return when an estoppel, 642. terms of charter-party, 644. damage, 645. illustrations, 645. damage may be presumptive, 645. false statement inducing suit, 645. inducing administrator to make inventory, 645, note. misrepresentation concerning delivery order, 646. delivery orders, 646-649. adjustment of loss by insurance company, 649. effect of the estoppel, 651. estoppel by waiver, 660-672. CONFESSION OF JUDGMENT, rule in America, 73. INDEX. 751 CONFESSION OF JUDGMENT, -^continued. rale iu Euglaud, 78. CONSIDERATION, recitals of, 383, 471. CONSPIKACY, 217. CONSTITUTIONALITY OF LAW, estoppel to deny, 81, 86, 530, 689. CONSULAR COURTS, conclusiveness of judgments of, 324. CONTINUING DAMAGES, judgment in cases of, 171, 172. CONTRACT, judgment against one of several joint contractors, 104-110. judgment on contract followed by cross-action for negligence, breach of "warranty, or fraud, 174-187. splitting up contracts, 197. as ground of estoppel by deed, 332. estoppel by contract, 459. when party estopped to deny validity of, 461-470, 684. agreement upon a fact as basis of action, 459-461. distinguished from estoppel, 576. acceptance of terms of contract, 684. invalid contract acted on, 685. receiving benefits of, 685. joint contract, 694, note. CORAM NON JUDICE, judgment must have been by a legally constituted court, 61. illustrations, 61-63. CORPORATIONS, effect on stockholders of judgment against, 137. deed in excess of powers, 349-352, 461-470. disputing existence of corporation, 461. counties and towns, 462. setting up defects in organization of body, 463. right of a party dealing with a supposed corporation to deny the legal existence of the body, 403. ultra vires may be shown when, 466-468. the question generally one of agency, 468. purchasers of bonds certified in due form, 469. membership of corporation effected by estoppel, 563. paying calls, 563. representations by agents, 598. directors affected with notice when, 611. CO-SURETIES, effect of judgment against one upon others, 145, 146. See Surety. COUNTER-CLAIMS, right to sue for after judgment in favor of other party, 174-187. 752 INDEX. COURTS, judgment mnst be g^iyen generally by lawful court of justice, 61 . exceptional cases, 64-;^7. English admiralty an inferior court, 205. otherwise of Federal courts of United States, 205, 206. jurisdiction of, 250-253. constitution of foreign court may be examined, 253. presumption as to, 253. Federal not foreign to state, 286. effect of judgment in consular courts, 324. See Courts-Martial ; Infkrior Courts ; Judokekts ; Jurisdic- tion; Military Courts. COURTS-MARTIAL, conclusiveness of judgments of, 65. COVENANTS, of warranty in old common law, 386. operate as a rebutter, 388. in modern times, 389. depend upon nature of grant and of warranty, 400. effect of, upon after-acquired title at the present time, 406, 407. for quiet enjoyment, 407. covenants of title, seisin, and right to convey, 408. for further assurance, 408. not a conveyance, 440. nor a lien so as to affect a subsequent purchaser without notice, 441. See Title by Estoppbl. CREDITOR AND DEBTOR, judgment in fraud of creditors, 216. no privity between, 343. CRIMINAL CAUSE, JUDGMENT IN. doctrine of jeopardy, 88. effect in civil suit, 115, 116. CROSS-ACTION, right of, after judgment for opposite party, 174-187. CUMULATIVE REMEDIES, effect of judgment in case of, 191, 192. CURTESY, husband not estopped to claim when, 448, note, tenant by, whether estopped by his tenancy, 542. CUSTOM, custom of London in foreign attachment, 188, 189. judgments incidentally establishing, 234. DAMAGE, continuing, 171, 172. an essential part of estoppel by conduct, 6dS-652. will be implied in some cases, 646. false statement inducing suit, 645. INDEX* 758 DECEIT, compared with equitable estoppel, 570, nota DECLARATION, judgment for insufficiency of, 58. DECREES, in Chancery, 58. See Judgments. DEDICATION, when effectual by estoppel, 635, 668. DEED, estoppel by deed as resting on contract^ 331, note. defined, 332. division of subject, 333. parties and privies, 334-348. deed binds such only, 334. parties, 334-341. boundaries upon streets, 334, note. illustrations of the rule, 334. persons acting under authority of grantee, 336. deed under which grantee does not claim, 336. estops parties only in the character in which they appear, 337. guardian ^s deed, 338. parties must be sui juris, 339. covenants of married women, 839, 340. deed of infant, 340. estoppel by deed against the state, 841. privity, 341-348. assignee of lessee, 342. other cases, 312-344. privy in estate, 343, note. no privity between judgment creditor and debtor, 848* effect of acceptance of, in regard to dower, 344. apparent conflict on this point, 344. question considered, 345. relation of doctrine of privity to the point, 345. what privity of estoppel means, 347. no privity of estoppel between grantor and grantee, 356. deed must be valid in order to an estoppel, 349-352. and delivered, 349. deed executed in violation of injunction, 349, note. by corporation in excess of powers, 349-352. in contravention of statute, 351. void only as to one of several grantors, 352. deed void in part, 352. deed procured by fraud, 852. no estoppel in collateral matters, 352. proceedings growing out of the deed, 354. joint grant, 355. 48 754 INDEX. DEED, — continued. grantee in deed-poll, 350. 'whether one who accepts a deed from another estopped to deny his title, 356. purchaser buying in better title than that of his vendor, 357* tyhen he can set up paramount title, 357-360. may show eviction, 359. estoppel against estoppel, 360. estoppel in pais against estoppel by deed, 361. if truth appears on face of, no estoppel arises, 361. limitations of rule, 362. iu actions of covenant and ejectment, 362, 363. recitals, 365-383. particular recitals conclude, 365-376. illustrations, 365-368. laud bounded on street, 370. land sold subject to mortgage, 371. recitals in patents, 372. sureties iu bonds, 373. homestead, 374. recital of law, 375. general recitals do not ordinarily estop, 377-388. examples, 377-380. exception, 380. recital of immaterial facts, 382. date of deed, 382. ground of estoppel by recital, 382. acknowledgment of receipt in a deed, 383. not conclusive, 383. title by estoppel, 384-447. See Title by Estoppsl. release of dower, 448-450. See Dower. witnessing another's deed, 571. DEED-POLL, grantee in, 356. DEFAMATION, repetition offered in evidence, 172. DEFAULT, judjiment by, 75, 186. DELIVERY BONDS, conclusive of what, 567. DELIVERY ORDERS, effect of, 474, 567, 622. DEMURRER, decision on, conclusive when merits involved, 53, 54, 68. DEPOSITIONS. sworn, 571, note. INDEX. 765 DEPUTY-SHERIFF, effect on sheriff of judgmeDt against, 122. DERELICT, sales of wreck and derelict conclusive on all persons, 246. DIRECTORS OF COKPORATION, affected with notice estopped, 611. See Corporations. DISCLAIMER, under what circumstances effectual to remove estoppel, 534. DISCONTINUANCE OF SUIT, effect of, 53, 61, note, 72. DISMISSAL OF SUIT, effect of, 53, 54, 72, 73. DIVORCE, judgment in suit for, 227-229. jurisdiction in causes of, 243. suit for alimony after decree of divorce, 276, 277. See Marriage and Divorce, DOMESTIC JUDGMENT, See Judgments, Domestic. DOMICIL, decisions in regard to, 232, 245. DOWER, whether acceptance of deed estops grantee to dispute widow's claim to, 344. release of, 448. wife not estopped without release, 448, note. conveyance hy husband of his wife's land, wife affixing her signature and seal, 448, 449. release of dower in fraudulent conveyance, 449. effect of election to take under will, 675, 678. DURESS, representation obtained by, 583. EJECTMENT, effect of judgments in, 128, 129. ELECTION, INCONSISTENT POSITIONS, party cannot occupy inconsistent positions, and the first taken will be held a conclusive election, 673. one who has taken beneficial interest under will estopped to deny its validity in equity, 674. examples, 674, 675. testator devising another^s property to whom he makes a gift, 675. by married women and infants, 675. widow's election to take under will, 675, 678. doctrine of election not applied when, 676. intention to dispose of property must appear in will, 677. 756 INDEX. ELECTION, INCONSISTENT POSITIONS, — coirfwwdL how election excluded, 677. election by heir, 677. property given sabject to burdens, 677. election arising under exercise of powers of appointment^ 678. what constitutes election, 679-683. any decisive act with knowledge is an election, 679. party taking possession of property, and holding and mamging it, 679. result of the cases, 683. instituting suit to contest will^ 683. acquiescence and waiver, 683. beneficiaries under trust estopped to impeach trust, 683. acceptance of terms of contract, 684. invalid contract acted upon, 685. examples, 685. receiving benefits of sale, 685. limitation of the rule of estoppel in such cases, 686. indirect benefit received, 686. collecting or receiving money for another, 686. taking appointment of trust, 686. assuming to act as principal, 687. stockholder in corporation receiving dividends, 687. wrongful severance of fixtures, 687. persons who have procured the passage of an act estopped to deny its constitutionality, 689. but in general no estoppel to deny validity of statute, 689, note. joining in petition for opening or improving street^ 691. levying tax to pay compensation for laying out street, 691. levying taxes generally, 692. other cases of similar nature, 692. improper use of term * estoppel ' in many of the cases, 693. examples, 603. ratification only an element of estoppel, 694. contracting jointly, 694, note. EMPLOYEES, effect of accepting employment, 552. ENEMY PROPERTY, condemnation of vessel as, 247, 248. ENTIRE DEMAND, continuing damages, 171, 172. not to be split in ordinary cases, 197. concealment of part of cause of action, 197. what constitutes, 197. ENTRY, WRIT OF, effect of judgment in, 98. EQUITABLE ESTOPPEL, origin, 557. INDEX. 767 EQUITABLE ESTOFFELj -^ eEX. 761 FEERY, PUBLIC, jadgment incidentally establiahing, 86, note, 234. FINDINGS, effect of, 48, 223, 231, 241, 247, 249. See Inferences, Grounds, and Findings. FINE, operation of, 417. FISHERY, judgment establishing, 86, note. FIXTURES, wrongful severance of, 687. FOREIGN COURTS, jurisdiction of, may be examined, 250. presumption, 253. so of constitution of tribunal, 253. consular courts, 324. See Judgments, Foreign. FOREIGN JUDGMENTS, in rem, 236-253. in personam, 256-325. See Judgments, Foreign. FORGERY, admission of genuineness, 480-495, 632. See Bills and Notes. FORGETFULNESS, when it may be replied to estoppel by conduct, 615. FORM OF ACTION, change of, 86, 200. FORMER ACQUITTAL, 89. FORMER CONVICTION, 89. FORMER JUDGMENT, plea of judgment for defendant for premature action, 56, note, nature of plea of, 80-90. causes of action must be identical, 80. plea of non est factum as to a bond, judgment sustaining, as bar to special promise to pay the bond, 81. . plea of judgment in an action for failing to remove a wreck, 82. plea of judgment for defendant in an action of contract, as bar to suit for fraudulent representations concerning the contract, 83. plea of judgment for defendant in an action for false representation of soundness, as a bar to an action on warranty, 83. action for goods sold defeated by special promise, and subsequent suit on the special promise, 83. cases of recurring liability, 85. tax assessments and debts due by instalment, 85, 86. form of action immaterial, 86. evidence of identity, 88. 762 INDEX. FORMER JUDGMENT,— con/muc J. doctrine of twice in jeopardy, 88, 89. trespass quare clausum, plea of judgment in, as bar to an entry sor disseisin, 98. FORMER RECOVERY. See Former Judgment. FORMER VERDICT, nature of plea of, 90. causes of action need not be identical, 90. doctrine of Ducheds of Kingston's Case, 91, 92. of Outram v, Alorewood, 93, 94. other cases, 95-97. " judgment for defendant on one of two notes by reason of a defence common to both, 95, 96. plea of fraudulent alteration of note, and reply of judgment obtained on the note, 96, 97. suit upon a special contract pleaded by opposite party in a former action and there denied by plaintiff, 97.* judgment in ejectment conclusive of right to mesne profits, 97. result of the cases stated, 99. verdicts out of equity, 101. judgment against several parties, rights inter sese, 101, 102. FRAUD, concealment of cause of action, 197. when ground of imfwaching judgments, 209-220, 254, 302-807. term * fraud * defined, 218. representation obtained by, 583. FURTHER ASSURANCE, COVENANT FOR, effect of, 408. GARNISHMENT, effect of judgment against garnishee, 138. voluntary payment by garnishee, 138. custom of Loudon, 138, 139. if execution satisfied, garnishee discharged pro tanto, 139. original creditor may prove his claim greater than admitted, 139. judgment must have been valid, 139, note. and real, 139, note. all defences must have been made, 139, 141. court must have had jurisdiction, 140, note. foreign judgments on, 314-317. * GOOD/ certification of a check as, 500. answer of maker of a note on inquiry, 580, 581. GOVERNMENT, estoppel against, 341. INDEX. 768 GRANT, DEED OF, operation, 424. GRANTOR AND GRANTEE, not in privity, 356. title by estoppel between, 894<413. See Title by Estoppel. GROUNDS OF DECISION. See Inferences, Grounds, and Findings. GUARANTOR, no privity between, and principal, 145, 146. GUARDIAN, deed of, with warranty, 838. HEIR, not in privity with ezecntor or administrator, 146, 147. election by, 677. ' HUSBAND AND WIFE, husband's representations cannot bind wife, 598, note. See Mabriaoe and Divorce ; Married Women. IDENTITY OF CAUSE OF ACTION, necessity of, to support plea of former judgment, 80. test of, 84. IGNORANCE. See Knowledge of Facts. IMMATERIAL FACTS, verdicts on, 157, 247. IMPEACHMENT OF JUDGMENTS, for want of jurisdiction, 202-208, 250, 288. for fraud, 209-220, 254, 302-307. See Judgments. IMPROVEMENTS, erected by grantor of deed with warranty inure to grantee, 407. made under license, 665. INCIDENTAL MATTERS, effect of verdict upon, 157, 247. what meant by incidental matter, 158. various illustrations showing judgment not to be binding, 247, 248. INCONSISTENT ACTS, election between, 673-694. See Election. in court, 717-723. INCREMENT, damages by, 170, 171. INDORSEMENT, warrants genuineness of negotiable paper, 482. acceptor may deny genuineness of, 483. 764 IKDBZ. » mDORSEMENT, ■— corUinued. unless when, 484-486. INFANTS, whether concluded by judgment, 117, 118. decree appointing tutor, 233. not estopped by deed, 340. whether subject to estoppel in pais, 605. conflict of authority, 605, 606. question considered, 606. election by, may bind, 675, INFERENCES, GROUNDS, AND FINDINGS, judgment establishes necessary when, 48, 152, 158, 223, 231, 232, note, 241, 247, 249. New York rule in regard to judgments in rem, 48, note, 241. INFERIOR COURTS, judgments of, conclasiye when, 66. superior courts not proceeding according to course of the common law, 204. of sister states, 319-325. consular courts, 324. INJUNCTION, against suing on judgment, 303. on ground of estoppel in pais, 716. IN PAIS, ESTOPPEL. See Aoengt; Bills and Notes; Conbuct, Estoppbl bt; Cor- porations; Election; Estoppel; Landlord and Tenant; Partnership. INSOLVENCY LAWS, adjudications upon constitutionality of, 86. effect of judgments under, 283. INSTALMENTS, debts payable in, effect of judgment, 85, 86. INSUFFICIENCY, dismissal orbill in chancery for, 53, 58, 61. judgment on demurrer to declaration for, 58. INSURANCE, acknowledgment of receipt of premium, 471, note, 478. adjustment of loss by insurance company, 649. waiver of defects in proof of loss, 662. waiver of terms of payment, 660-665. discontinuance of agency, 663. INTENTION, in equitable estoppel, 628-637. general rule concerning, 629. may be actual or presumable, 629-635. See Conduct, Estoppel by. INTERLOCUTORY ORDERS, effect of, 60, note. INDEX. 765 INVENTORY, ameDdment of, by administrator, 555^ note. inducing administrator to proceed to, 645, note. JEOPARDY, twice in, 88, 89. JOINT CONTRACT, judgment upon, merges the same, 104. JOINT JUDGMENT, suit by one to restrain, 111. JOINT TORT, effect of judgment on, 112. JUDGMENTS, FOREIGN, IN PERSONAM, cases considered historically concerning judgments of foreign nations, 256-262. finally settled in England that such judgments are oonclusive on the merits, 261. immaterial that they are erroneous, 261. or that they proceed on an incorrect yiew of the law of England, 262. unsettled state of cases in this country, 264. early English dicta formerly followed, 264. question considered, 264. judgments of the sister states of America, 266. history, provisions of Confederation and Constitution, 267. conclusive on merits, 268. Mills V, Duryee, 268. nil debet not a good plea, 268-270. judgments of superior courts record evidence, 260. Statute of Limitations a good plea when, 271. whether constitutional provision includes criminal cases, 273. does not embrace qui tam actions, 273. does not embrace matters subsequent to the judgment, 274. judgment of sister state for plaintiff establishes his right to sne in the same capacity, 276. judgment for a party conclusive of his existence, 276, note. non -production of evidence, 276. independent demands, 276, 277. effect of judgment against executor in regard to assets, 270. cases of principal and surety, 279. judgment conclusive of law applied, 270. error of fact cannot be alleged, 280. so of irregularity, 280. ■ unconstitutional laws concerning foreign judgments, 281, 282. effect of judgment in insolvency, 283. judgment must have gone on the merits, 284. matters collateral and incidental, 285. 766 INDEX. JUDGMENTS, FOREIGN, IN PERSON AM, — confmiK^c/. jadgment must have been final and 'conclusive where rendered, 286. rule of conclusiveness prevails also in chancery, 285. Federal courts not foreign to state courts, 286. result of cases stated, 2b7. limitation of rule, 287. judgments of foreign countries liable to impeachment in respect to jurisdiction, 288. limitation of rule, 289, 290. not record evidence, *290. doctrine in respect to impeaching the jurisdiction of courts of sister sUtes, 290*296. state statutes providing for judgment without personal service have no extra-territorial effect, 296, 299, 801. cases of foreign attachment, 300. citizens of the state bound, 801. also propei-tv of non-residents, 801. whether judgments of sister states may be impeached or restrained for fraud, 302-307. whether judgments of foreign countries may be, 807. judgment of foreign country no merger of cause of action, 808. otherwise of judgments of sister states, 310-314. garnishment or trustee process, 314-317. doctrine of privity, 317. no privity between executors or administrators of different states, 317, executor in one state and administrator de bonis non in another state, 318. judgments of foreign courts of inferior jurisdiction, 319-325. whether constitutional provision embraces such judgments, 319-323. question considered, 323. foreign consular courts, 324. impeaching jurisdiction of such courts, 325. JUDGMENTS, FOREIGN, IN REM, deemed conclusive a century ago, 236. Algerine decrees, 238. conclusive of the fact for which the condemnation was prononneed, 241. otherwise in New York, 241. immaterial that judgment was palpably erroneous, 242. decrees concerning marriage and divorce, 243. decrees of Probate Court, 245. sales of wreck and derelict, 246. conclusive only of matters essential to the decision, 247. limitation of doctrine, 248. not conclusive of matters obscurely or ambiguously stated, 249. whether evidence admissible to show what was meant, 250. jurisdiction may be questioned, 250. adjudication of jurisdiction, 252. INDEX. 767 JUDGMENTS, FOREIGN, IN REU, — continued. presumption of authority, 253. want of authority of tribunal to sit as court, 253. may be impeached for fraud, 254. JUDGMENTS IN PERSONAM, distinguished from judgments in rem, 43, 48, note. general operation of, 48. judgment conclusive of necessary inferences, grounds, and findings, when, 48, 152, 158, 223, 231, 232, note, 241, 247, 249. plea of former judgment, 80-90. See Former Judgment. there must be an identity between the causes of action, 80. judgment on plea of non est factum in suit on a bond no bar to special promise to pay the bond, 81. judgment that suit has been prematurely brought on a note no estop- pel to sue on the consideration of the note, 81. other examples of the rule concerning identity, 82. plea of judgment in an action for failing to remove a wreck, 82. . plea of judgment for defendant in an action of contract as bar to suit for fraudulent representation concerning the contract, 83. plea of judgment for defendant in an action for false representation of soundness as bar to an action on warranty, 83. action for goods sold defeated by special promise, and subsequent suit on the special promise, 83. test of identity, 84. cases of recurring liability, 85. tax assessments and debts due by instalment, 85, 86. form of action different, 86. evidence to supply omission in the record, 87. twice in jeopardy, 88, 89. plea of former verdict, 90-103. operates as estoppel, though cause of action be different, 90. but the particular point in dispute must be the same in both cases, 90. nature of the plea, 91. sentence of spiritual court against a marriage in suit for jactitation no estoppel to an indictment for bigamy, 92. recovery in trespass, effect of, 93, 94. other cases, 95-97. judgment for defendant on one of two notes by reason of defence common to both, 95, 96. plea of fraudulent alteration of note and reply of judgment obtained on the note, 96, 97. suit upon a special contract pleaded by opposite party in a former action and there denied by plaintiff, 97. judgment in ejectment conclusive of right to mesne profile, 97. in trespass quare clausum, 98. result of the cases stated, 99. verdicts out of equity, 101. 768 INDEX. JUDGMENTS IN PERSONAM, — con/mti^rf. jadgment agaiost several parties, riglits inter sese, 101, 102. when suit to enforce judgment opens it, 102, 103. effect and operation of judgment and verdict estoppels, 103. merger, 103-111. joint contractors, 104-110. partners, 107. other special cases, 108-111. parties to bills and notes. 111. joint and several bonds, 111. tortfeasors, 112. parties, 113-142. See Partij^s and Priyibs. judgments in personam bind only parties and privies, 113, 114. who are parties, 114. parties under legal disability, 110-118. married women, 116, 117. infants, 117, lia lunatics, 119. judgments against persons deceased, 119. principal and agent, master and servant, 120-127. master of vessel and owner, 121. officer and deputy, 121, 122. principal and surety, 123, 124. bailor and bailee, 126, 127. judgment in ejectment, 128, 129. parties nominally the same, but really different, 180. judgment concludes parties only in the character in whidi they appear, 130, 131. effect of notice to third persons liable over, 131-184. in some cases liable to indemnify without notice, 134. whether one appearing as a witness is estopped, 135, 186. trustee and cestui que trust, 136, 137. effect of judgment against a corporation in suit against stockholder, 137. garnishment or trustee process, 138-142. judgment without satisfaction, 138, 139. custom of Ix)ndon, 138, 139. judgment must be fairly obtained, 141. all defences must be made, 141. privies, 142-149. definition, 142. judgments conclude privies as well as parties, 142. illustrations, 143-145. no privity between guarantor and principal, surety and principal, and po-sureties, 145, 146. no privity between administrator or executor and heir or devisee, 146, 147. executor of executor, 148. INDEX. 769 JUDGMENTS IN PERSONAM, — confinufrf. whether administrator de bonis non may maintain scire facias on a judgment of his predecessor, 148, note. administrator in privity with intestate, 148. executor in privity with testator, 148. heir or devisee in privity with ancestor or devisor, 148. whether administrator de bonis non in privity with his predecessor, 148. no privity between executors or administrators of different states, 149. purchaser of a judgment, 149. claimants who are not privies, 150-152. cases in which judgments avail against third persons, 150-152. relation of debtor and creditor, 150, 151. judgments no estoppel as to matters incidentally determined, 152. matters which might have been litigated, 152, 153. effect of judgments as to matters not passed upon, which might have been put in issue, 153. various examples, 154-157. distinction between courts of concurrent and those of exclusive juris- diction as to matters incidentally determined, 157. what is to be regarded the point in issue, 158. submission of * all matters in difference ' to reference, 106. evidence withheld as to one count of declaration, 166. submission of * all demands between the parties,' 166. action on two notes and withdrawal of one, 168. distinct trespasses, 169. continuing damages, 171, 172. suit for interest after judgment for principal, 170. independent cause of action may be drawn into the pleadings and decided upon, 174. judgment on contract and cross-action for negligence, or breach of wan-anty or fraud, 174-187. rule in New York, 175. rule in Massachusetts, 177. rule in New Hampshire, 177. rule in Ohio, 178. rule in England, 179. rule in Michigan, 183. question considered, 185. nature of cross- rights, 186. distinction between case where evidence is omitted and where insuffi- cient evidence is produced, 187. evidence as to one count rejected as inadmissible, and subsequent suit on same count, 189. action to recover money paid under judgment, 190. effect of judgment upon one of several cumulative remedies, 191, 192. effect of judgment upon portion of an entire demand, 194. single ca'use of action not to be split, 197. 49 770 INDEX. JUDGMENTS IN PERSONAM, — conrtnucrf. concealment of part of cause of action, 197. what constitutes an entire demand, 197. judgment for plaintiff by default, plaintiff allowing defendant partial credit for separate demand, 199. entries made of record after judgment, 199. form of action not material, 200. judgment against plaintiff estops him to allege same demand as set- off, 201. immaterial that former judgment ayerred other demands besides the present claim, 201. judgment at law bars suit in chancery, 201. collateral impeachment of judgments, 202. as to jurisdiction of superior courts, 203. presumption as to, 204. pai-ties under disability, 204. courts not proceeding according to common law, 204. inferior courts, 205. adjudication as to jurisdiction, 205-207. denial of attorney's authority to appear, 208. fraud in case of superior courts, 209-217. English doctrine, 209-216. probate decrees, 211. , American cases concerning fraud in conflict, 214-216. question considered, 217. distinction between judgment obtained by fraudulent practice and judgment on fraudulent claim, 218-220. JUDGMENTS IN REM, general nature and effect of, 42-49. distinguished from judgments in personam, 43, 48, note, 223. adjudications of prize in admiralty, 221. conclusive upon all persons, not only of the change of property, but also of the fact for which condemnation was pronounced, 221. cases of collision, 222. . condemnation of goods in the Exchequer, 224-226. acquittal of goods, 226. effect of decree establishing pedigree, 227. decree as to legitimacy, 227. proceedings in marriage and divorce, 227-229. decrees of probate, 229-232. orders of removal of paupers, 232. decree appointing a tutor to a minor, 233. judgment confirming report of commissioners of boundary, 233. judgments in attachment, replevin, and the like, 234. judgments incidentally establishing reputation, custom, public fer- ries, etc., 234. nature of judgment in rem, 234. whether unsatisfied judgment against a vessel a bar to a suit in per- sonam, 235. INDEX* 771 JURISDICTION, recitals of, d6, 206. what constitutes, 61, 52. not acquired by acquiescence or request, 51, note. courts must have, 61. impeachmeDt of jurisdiction of superior courts, 203. presumptions as to jurisdiction, 204. superior courts not proceeding according to course of the common law, 204. English Admiralty an inferior court, 205. otherwise of Federal courts of United States, 205, 206. adjudication of jurisdiction, 205-207, 252. appearance by attorney, 208. of foreign courto, 250-252, 288-290. of judgments of sister states, 290-302. See JUDOMKNTS. JUS TERTII, when bailee may set up, 548-552. See Bailor and Bailbb. KNOWLEDGE OF FACTS, the rule concerning, in equitable estoppels, 611. where party has means of informing himself, 611. forgetf ulness of facts, 615. in cases of boundary, 618. conflict of cases, 619, 620. long acquiescence held sufficient in some states, 620. limits of the estoppel in these cases,. 621. warehouse receipts given under mistake, 622. ignorance the result of gross negligence, 626, note. party must know that representation will be acted on, 629, 636. purport of inquiry not understood, 636. LAND COMMISSIONERS, decisions of, 67. LANDLORD AND TENANT, estoppel of tenant to deny landlord's title, 506. of modem origin, 506. nature of, in time of Coke, 506. arose only in case of deed, and against the party sealing, 506. i^d only when the demise was the gist of the action, 607. seal not the foundation of the modern estoppel, 506. estoppel continues as long as tenant continues in possession, 607. estoppel applies to leases of personalty, 507. estoppel of the old common law different from that which now pre« vails, 507. modem doctrine arose out of assumpsit for use and occupation, 609. 772 INDEX. LANDLORD AND TEN ANT, — con/inwd. enjoyment by permission the foundation of the estoppel, 509. several cases criticised, 510. payment of rent evidence of tenancy, 511. doctrine of mutuality prevails, 512. same rules prevail concerning competency of parties as in estoppel by deed, 512. persons under disability not estopped, 512. doctrine of privity prevails, 512, 518. sub-lessees, 513. outstai^ding title cannot be set up by tenant, 514. not estopped in cases of fraud, 515. tenant may show that landlord's title has expired, 517. new taking or letting into possession, 518, note. tenant may purchase landlord's estate, and thus end the estoppel, 519. buying tax title, 519. acquisition by tenant of title under which landlord claims, 519, 520. eviction of tenant may be shown, 520. constructive eviction enough, 522. ouster in pais, what tenant must prove, 522, note. tenant not estopped in cases of mistake, 523. tenant not estopped to explain circumstances under which an attorn* ment has been made, 523. whether tenant taking lease of land of which he was already in pos- session is estopped without surrender, 525. no estoppel in case of mistake, fraud, or misrepresentation, 527. California doctrine, 527. rule in New York and Kentucky, 527. rule in England, 529. rule in Massachusetts, 538. question considered, 533. •effect of disclaimer, 534. lessor may at once eject tenant, but if he do not within the period of limitation, tenant may then set up his own title, 584. but not before period of limitation has expired, 534. tenant may show that one to whom he has attorned has no derivative title, 536. when tenancy is established, the estoppel of tenant arises though ten- ancy be created by deed showing that landlord had no legal estate, 538. limitations of rule, 540. doctrine of tenant's estoppel not confined to cases of ejectment, 541. doctrine prevails against one in possession under mere license, 542. tenancy created by law, 542. widow continuing in possession of husband's estate, 542. tenant by the curtesy, 542. relation of mort^ragor and mortgagee, 544. relation of trustee and cestui que trust, 546. INDEX. 773 LANDLORD AND TENANT, — conaViutfrf. position of purchaser of land before payment, 545. entry under contract of purchase, 545-547. LAND PATENTS, when binding, 67. survey and patent of land commissioners, 67. LAW, estoppel to deny constitutionality of, 81, 86, 530, 689. effect of decisions on the law, 100. mistake or error of, no ground for impeaching judgments, 83, 84, 209, 210, 261. estoppel as to statement of, 375, 572. LEASE, where no interest passes an estoppel arises, 390. where an interest passes no estoppel arises, 391. See Landlord and Tenant; Title by Estoppel. LEASE AND RELEASE, DEEDS OF, operation of, by way of estoppel, 423. LEGITIMACY, judgment of, as to other children of the same marriage, 44, 227. LIBEL, repetitions offered in evidence, 172. LICENSE, possession of premises under, works an estoppel, 542. to use another's land, 665. LICENSEE OF PATENT, not permitted to deny validity of patent when, 552, 553. LIMITATIONS. See Statute. LIS PENDENS, 115. LUNATICS, judgments against, 119. MARINE INSURANCE, acknowledgment of receipt of premium, 478. MARRIAGE AND DIVORCE. sentence of Spiritual Court in suit for jactitation of marriage. Duchess of Kingston's Case, 92. proceedings are in rem, conclusive against all persons, 227-229, 243. foreign decrees, 243. MARRIED WOMEN, judgments against, 116, 117. separate estate, 339. not estopped by deed at common law, 339, 340. contra in some states, 340. joining with husband in deed of her estate, 448, note. 774 INDEX. MARRIED WOMEN, — c Notes. WHARFINGER, possession by, 549. WIDOW, acceptance of deed by grantee of husband, 344. release of dower, 448. INDEX. 791 WIDOW, — continued, in possession of husband's real estate estopped to deny title of heir, 542. ^ and of husband's grantee, 542. election of, 675, 678. * WILFULLY,' * ^ term as used in Fickard v. Sears explained, 630. WILL, probate of, establishes what, 48, 211, 229-231, 245. possession taken under, 554, 555. doctrine of election, 673. WITNESS, whether estopped by judgment, 135, 136. may deny his own statements, 135, note. procuring another to witness one's deed, 571, note. WITNESSING DEED, works estoppel, 571. WORDS, * all demands,' 166. * good,' 500. * all right,' 581,4^. • * wilf uHy,' 630. WRECK AND DERELICT, sales of, conclusive upon idl persons, 246. WRIT OF ENTRY, effect of judgment in, 98. UnlTenlty Ptcm: John WUaon & Son, Cambridge. A A*ttm»onm»lmm«*m 3 6105 044 783 475 I r~]